Walker v Bairds & Dalmellington
| Jurisdiction | Scotland |
| Judgment Date | 28 June 1934 |
| Docket Number | No. 56. |
| Date | 28 June 1934 |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION.
Workmen's Compensation—Act 1925 (15 and 16 Geo. V. cap. 84), sec. 1 (1)—"Injury by accident"—Contracting disease—Mineworker contracting broncho-pneumonia in consequence of a chill—Disease arising out of and in the course of the employment.
A mineworker, in addition to his ordinary work as an underground fireman, was regularly employed in cleaning a sump in which water from the workings in the mine gathered. This cleaning work involved his standing for about half an hour waist deep in cold water in the sump. On one occasion, while doing this work, he contracted a chill which developed, within a short period, into broncho-pneumonia, from which he died. It having been proved, in an arbitration under the Workmen's Compensation Acts, that the disease of broncho-pneumonia from which the workman died was causally connected with the chill which he contracted as a result of exposure to cold and water while doing his work—
Held that, since it was established that the chill which had caused the disease had arisen out of and in the course of his employment, the workman's death from the disease was the result of an "injury by accident" within the meaning of sec. 1 (1) of the Act of 1925.
Falmouth Docks and Engineering Co. v. TreloarELR, [1933] A. C. 481; and Partridge Jones & John Paton, Limited, v. JamesELR, [1933] A. C. 501, followed.
Authorities reviewed.
Mrs Mary Currie M'Crorie Or Walker presented an application in the Sheriff Court at Ayr for an award of compensation under the Workmen's Compensation Act, 1925,1 in respect of the death of her husband, John Walker, underground fireman, while in the employment of Bairds & Dalmellington, Limited, coalmasters, Auchincruive Collieries, Prestwick. The Sheriff-substitute (T. A. Menzies) refused compensation, and, at the request of the applicant, stated a case for appeal.
The case set forth:—"(1) That on 24th March 1933 the deceased John Walker was in the employment of the respondents at No. 3 Auchincruive Colliery as an underground fireman. (2) That at said colliery there is a sump into which water from the underground workings gathers, and from which the water is taken to the surface by a suction pipe. (3) That owing to sludge or dirt, accumulating in the bottom of the sump, tending to choke the suction pipe, the sump requires to be cleaned about once every three months, and it had been the practice so to clean it. (4) That the deceased had for several years prior to his death been regularly employed to clean out the sump. (5) That the work of cleaning out the sump was not part of the deceased's work as an underground
fireman but was extra work, which he voluntarily undertook, and for which he received pay equal to that for one and one-half shifts at his ordinary work. (6) That it is not proved that specially qualified men were necessary for the work. (7) That on the 24th March 1933 the deceased, who had worked at his ordinary work on the morning shift from 6.30 a.m. to 2.30 p.m., was requested to clean the sump that afternoon. (8) That he then went home, had his dinner, returned to the pit, and about 5, p.m. went down to the pump room, which is above the sump, changed into old clothes and put on the oilskins which are supplied for this work, and then proceeded down a ladder on to a scaffolding above the water where he waited in accordance with the usual practice, along with another man who was employed on the job, until the water was pumped down to the level at which it should be when the sump is to be cleaned. (9) That when the water reached the proper level, which was about three and a-half feet from the bottom of the sump, the deceased and the other man entered the water and proceeded to clear away the sludge in the usual way, which was by bending forward and pulling a pail along the bottom of the sump and scooping up the sludge in the pail. (10) That to do this the men had usually to stand in water about waist deep, and the deceased had to do so on this occasion. (11) That the oilskins provided for the men do not protect them from getting wet when they are in the sump. (12) That while working in the sump the deceased was wet through up to the waist. (13) That the water felt cold to the men when they entered it, but that it is not proved that the water was unusually cold. (14) That the pails, when filled, were attached to a rope, quickly pulled up, emptied, and returned by the rope, and there was very little waiting for the return of the empty pails. (15) That the time during which the deceased was in the water cleaning the said sump was not less than thirty-five minutes. (16) That the usual time during which the men required to be in the water for this purpose is between half an hour and an hour. (17) That after cleaning the sump the deceased returned to the pump room, took off his wet clothes, washed himself in cold water, and put on his ordinary clothes, a proceeding which occupied about twenty minutes. (18) That thereafter he walked home along with the other man who had been in the sump and an overs man, arriving home about 7 p.m. (19) That while dressing in the pump room the deceased had an appearance of being cold and shivering, but did not make any remark about it. (20) That when walking home the deceased did not complain of cold. (21) That when he arrived home the deceased told the appellant that the water in the sump had been cold and took a hot bath to warm him. (22) That he then had some food, and after that sat in the house until he went to bed about 10 o'clock. (23) That, between 2 and 4 o'clock the next morning, the deceased became unwell, suffering from rigor and shivering and vomiting, and during the day developed symptoms of broncho-pneumonia. (24) That when a doctor was called in on the afternoon of that day (the 25th March), deceased explained to the doctor that he had been cleaning the sump at the pit on the previous day and had felt chilled after doing so. (25) That on the following day the deceased had become worse and was definitely suffering from broncho-pneumonia, which became steadily worse until he died of broncho-pneumonia on 30th March 1933. (26) That the appearance of coldness and shivering Which the deceased had when he left the sump, was a symptom that he was suffering from a chill caused by the exposure to cold and water while he was cleaning the sump. (27) That the rigor, shivering, and vomiting from which he suffered between 2 and 4 o'clock next morning were symptoms that he was suffering from a chill. (28) That broncho-pneumonia is an infection due to organisms causing the infection, which are commonly present in the nose and throat of an apparently healthy person, invading the lungs, the invasion being made possible either by the inhalation of foreign particles or by a chill, involving congestion of the lining membranes of the respiratory tract. (29) That broncho-pneumonia so caused by a chill may not develop immediately, but may appear in any time from three to forty-eight hours after the chill. (30) As an inference from the foregoing facts, that the broncho-pneumonia from which the deceased died was caused by a chill which he contracted through exposure to cold and water while cleaning the sump."The case further set forth:—"On these facts I found in law that the death of Walker was not caused by accident arising out of and in course of his employment, and, accordingly, on 10th January 1934, I assoilzied the respondents, from the crave of the initial writ. …2"
The question of law for the opinion of the Court was:—"On the foregoing facts was I entitled to hold that Walker's death was not caused by accident arising out of and in the course of his employment?"
The case was heard before the Second Division on 13th and 14th June 1934.
At advising on 28th June 1934,—
LORD JUSTICE-CLERK (Aitchison).—The question which arises in this case is whether the death of the appellant's husband, who was in the employment of the respondents, was due to accident arising out of and in the course of his employment. The facts upon which the question arises have been stated by the learned arbitrator with very great clearness, and it is unnecessary to resume them in detail. But the salient facts of the case may be briefly stated. The workman was employed by the respondents as an underground fireman in their colliery at Auchincruive. It was part of his employment to clean out a sump in the colliery into which water was collected from the underground workings. This work was not his ordinary work, but it was work which he undertook about once every three months, and it was part of his employment with the respondents. In carrying out the work it was usually necessary to stand in water about waist-deep and scoop out from the sump the sludge that had collected in it. On the forenoon of 24th March 1933 the workman did the ordinary work of his shift, and, having gone home, he returned after dinner to the pit about five o'clock and went down to the sump, which he cleaned out in the usual way. On coming out of the sump, and while he was dressing in the pump-room, it was noticed that the deceased workman had the appearance of being cold and shivering. He returned to his home, complained to his wife—the appellant—that the water in
the sump had been cold, and, after taking food and sitting in the house for a little, he went to bed about ten o'clock. Early the next morning he was seized with rigor and shivering, and during the day he developed symptoms of broncho-pneumonia. The disease progressed and became steadily worse, and the deceased died from it on 30th March 1933. I now quote findings 26 to 30:—"(26) That the appearance of coldness and shivering which the deceased had when he left the sump was a symptom that he was suffering from a chill caused by the exposure to cold and water while he was cleaning the sump. (27) That the rigor, shivering, and vomiting from which he suffered...To continue reading
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