Mittun v Salvesen & Company
| Jurisdiction | Scotland |
| Judgment Date | 02 November 1933 |
| Docket Number | No. 4. |
| Date | 02 November 1933 |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION.
Sheriff of the Lothians and Peebles.
Workmen's Compensation—Act 1925 (15 and 16 Geo. V. cap. 84), sec. 1 (1)—"Injury by accident"—Accident "arising out of" the employment—Contracting disease—Seaman contracting dysentery—Germ conveyed by food or water supplied by employers in terms of contract of service.
A seaman died from dysentery. He was infected with the germ either from food or from water supplied to him on board ship by his employers in terms of his contract of service. The food and water were taken on board at a port of call.
Held (1) that the contracting of dysentery by the workman was an injury by accident, although the germ entered his system by a natural avenue, and (2) that the accident arose out of his employment, in respect that the infection came from food and water supplied by his employers in terms of his contract of service.
M'Cafferty v. MacAndrews & Co., 1930 S. C. (H. L.) 90, [1930] A. C. 599, followed.
In an arbitration under the Workmen's Compensation Act, 1925, in the Sheriff Court at Edinburgh, between the widow of the deceased John Mittun, ship's cook, Leith, and his employers, Christian Salvesen & Company, shipowners, Leith, the Sheriff-substitute (Macdonald) refused compensation, and, at the request of the claimant, stated a case for appeal.
The case set forth that the following facts were admitted or proved:—"(1) The appellant is the widow of John Mittun, who died on 18th July 1931; (2) the appellant and her said children were the only persons dependent upon the deceased, and at the time of his death were wholly dependent upon his earnings; (3) if the appellant is entitled to compensation, the amount payable, including the statutory allowance in respect of the children, is £600; (4) Mittun, who was twenty-three years of age, was a ship's cook in the employment of the respondents, and at the time when he became infected with dysentery, as aftermentioned, he was employed in that capacity on board the s.s. “Fintra”; (5) the said ship sailed from Granton on 21st May 1931 for Genoa, and arrived there on 3rd June; she remained there till 9th June, when she sailed for Porto Empedocle, arriving there on 11th June, she left the latter port on 17th June, and, after calling at Oran, proceeded to Belfast, which she reached on 1st July, and afterwards to Larne and Ardrossan; (6) on the day before she left Genoa her fresh-water tanks were filled with water from a hydrant on the quay from which ships were usually supplied, and fresh meat and vegetables were taken on board; (7) when at Porto Empedocle, and immediately after leaving that port, several members of the crew, including Mittun, became affected with dysentery, the out-break being practically simultaneous; (8) Mittun was the last man to become affected, and his condition was worse than that of the others; (9) at Larne his condition was so serious that he was discharged from the ship and sent home to Leith; (10) on 11th July he was admitted to Leith Hospital, and died there on 18th July; (11) the cause of his death was dysentery; (12) the germ of infection was contained either in the fresh water from the ship's tanks, which were filled at Genoa, or in the food supplied by the ship to the crew; (13) Mittun became infected either by drinking that water or eating that food; (14) it was not proved how or when the water or the food became contaminated; and (15) the infection of Mittun with the dysentery, from which he died, took place in the course of his employment with the respondents."
At the debate before the Second Division it was admitted that the food and water were supplied by the respondents to Mittun in terms of his contract of service.
The case further stated:—"On the foregoing facts I found that the death of Mittun did not result from an accident arising out of and in the course of his employment, and I refused to award compensation."1
The question of law for the opinion of the Court was:—" On the foregoing facts was I entitled to hold that Mittun's death was not the result of an accident arising out of and in the course of his employment?"
The case was heard before the Second Division on 17th and 18th October 1933.
At advising on 2nd November 1933,—
LORD JUSTICE-CLERK (Aitchison).—The appellant is the widow of one John Mittun, who was a ship's cook in the employment of the respondents. The respondents are the owners of the s.s. "Fintra," on which Mittun was employed, and where he contracted the dysentery from which he died in Leith Hospital on the 18th July 1931. The appellant claims compensation under the Workmen's Compensation Act for herself as his widow and her two pupil children in respect of his death. Her claim is for total dependency, and in the event of her being entitled to compensation the amount is agreed at the statutory sum of £600.
The salient facts upon which the question arises are these: [His Lordship summarised findings (4) and (5), and continued]—The material findings in the case upon which the question arises are stated by the arbitrator in findings (6) to (15) inclusive, which I recite in full. [His Lordship read findings (6) to (15), and continued]—
On these facts the arbitrator found that the death of Mittun did not arise from an accident arising out of and in the course of his employment, and he refused the appellant's claim for compensation. The question of law stated in the case is:—" On the foregoing facts was I entitled to hold that Mittun's death was not the result of an accident arising out of and in the course of his employment?"
Although this question is in form one, it really includes two questions which are raised in the case—(1) Was the arbitrator entitled to hold that the disease which Mittun contracted (admittedly in the course of the employment) and from which he died was not injury by accident within the meaning of the Workmen's Compensation Act? and (2) If the first question falls to be answered in the negative, did the injury by accident arise out of the deceased's employment with the respondents? We heard full argument upon both of these questions. The learned arbitrator in his note does not deal separately with the second question, having reached the conclusion that, on the facts stated, there was no injury by accident within the meaning of the statute.
The first question, therefore, is whether the death of Mittun was death from injury by accident in the sense of the Act. It is now well established that physical impact or lesion in the popular sense is not a necessary ingredient of injury by accident. It is not essential that there should be some immediate visible hurt, such as the breaking of a limb or the drawing of blood. The invasion of the body by a bacillus with a resultant infection may be as truly injury by accident as a hurt to the body caused by physical impact with an external force. This proposition is now indisputable on the authority of the House of Lords in the cases of Brintons, Limited, v. TurveyELR19and Grant v. KynochELR.20
The respondents' counsel did not controvert this proposition thus broadly stated, but they maintained that, in the individual case, it is
essential to prove some external or extraneous accidental circumstance other than the invasion of the system by the bacillus and the contracting of the disease and the relation to the employment. They founded on the dictum of Lord Wrenbury in Grant v. KynochELR21 (at p. 83) that there must be "some occurrence which is accidental and is extraneous to the disease itself from which the disease resulted, and that occurrence must be referable to the employment." The last requirement of this passage must, of course, be conceded, because the statute requires that the accident shall arise out of the employment. Founding on this dictum it was maintained by the respondents that it is not enough to show the mischance of the assault of the bacillus upon the workman and the resultant disease and the relation to the employment, but that in addition there must be some accidental extraneous happening to satisfy the requirement of accident. Now it appears to me that what is required in each case must depend on its own circumstances. There is no single formula. In some cases the inference is easy. Grant v. KynochSCELR22 is a good example. In that case there was a scratch or abrasion on the workman's leg (not suffered in the employment) which was a suitable nidus for the infecting germ, and the conjunction of the scratch or abrasion and the germ could fairly be described as accidental; but I am quite unable to read the case as meaning that, if the avenue by which the germ found entrance had not been artificial, as is a scratch or abrasion, but had been the natural avenue of the nose or mouth, the case would have been differently decided. The material thing was the assault and invasion; the precise mode of the assault and invasion (assuming always a relation to the employment) was immaterial. But in any event, accepting the view that some extraneous accidental circumstance is required, that requirement is easily satisfied in the present case. It was an accidental circumstance that the food or water became contaminated; if the contamination occurred on shore, it was accidental that the contaminated food or water was taken aboard as part of the ship's supplies; it was accidental that the contaminated food or water was consumed by the deceased; and it was accidental that the infecting germ, which might have passed through the system without doing injury, came into contact with an infectable part of the man's body. All the elements of injury by accident were present.In the course of the debate I put this illustration: Supposing that rat poison had become accidentally immixed with the food supplied by the ship to the crew, and that the deceased, having eaten the poisoned food, had died in consequence. That would be death by poisoning. Would it be death by...
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