Scottish Court of Session Decisions

In an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) between William M'Millan, canvasser, Glasgow, appellant, and the Singer Sewing Machine Company, Limited, respondents, the Sheriff-Substitute ( Glegg) dismissed the application as irrelevant, and at the claimant's request stated a Case for appeal.

The Case stated—“At the calling of this case the appellant was appointed to lodge a condescendence, and the respondents' answers and said papers were duly lodged in process. The condescendence lodged by the appellant is in the following terms ‘1. The pursuer is a collector and canvasser, and resides at 44 Phœnix Park Terrace, off Garscube Road, Glasgow. The defenders are a limited liability company, and carry on business at 58 Both well Street, Glasgow. 2. The pursuer entered the defenders' employment as a collector and canvasser on or about the 15th day of February 1912, at a salary of 10s. per week and commission,

Page: 221↓

made up of (1) 5 per cent. on sums collected, and (2) 10 per cent. on goods sold. The said salary of 10s. per week was increased to £1 per week in or about the middle of March 1912. 3. On or about Monday, the 6th day of May 1912, the pursuer was engaged in the ordinary course of his employment as canvasser and collector with defenders in canvassing and collecting accounts from defenders' customers in the Maryhill and Lambhill districts of Glasgow and neighbourhood thereof. The weather was quite dry all day. Pursuer was engaged up till about eight o'clock on the evening in question, when he found that it would be necessary for him to tax his energies to the utmost in order to enable him timeously to overcome the work before him, and the pursuer had to complete said work in the evening of said Monday, 6th May, as it was his duty and instructions to do so. 4. The last calls of the pursuer consisted of calls on a number of customers of defenders for the collection of accounts in three different tenements in Maryhill, viz.—(1) Mrs Thomson, 173 Cumlodden Drive; (2) Mrs Gibbin, 7 Morrison Street; and (3) Mrs Crossan, 9 Morrison Street. The pursuer had called at said tenements earlier in the day, but none of said customers were at home, and accordingly on the evening of said 6th May 1912, and about eight o'clock, the pursuer proceeded to call at the house of the said Mrs Thomson. The said Mrs Thomson resided in a flat in said tenement, three stairs up. While walking up said stairs the pursuer over-exerted himself and became sweated, with the result that he contracted a chill. He completed his other two calls on Mrs Gibbin and Mrs Crossan, but on arriving home he had to go immediately to bed. 5. As a result of having contracted said chill he was confined to bed from 6th to 14th May 1912, on which latter date he was taken to the Royal Infirmary, Glasgow, where it was found that he was suffering from pleurisy as a consequence of said chili, and he has since said 6th May been incapacitated from resuming his occupation. 6. Said chill contracted by the pursuer was an accident within the meaning of ‘The Workmen's Compensation Act 1906,’ and arose out of and in the course of pursuer's employment as a collector and canvasser foresaid with defenders. 7. The pursuer's earnings consisted of (1) salary at the rate of £1 per week, and (2) commission foresaid, averaging 8s. per week. The pursuer is therefore entitled to an award of compensation at the rate of 14s. per week during his period of incapacity. 8. Notice of said accident was given by the pursuer to defenders, and a claim for compensation made, but the defenders decline or delay to make compensation, and these proceedings have thus been rendered necessary.

“Plea-in-Law.—The pursuer being a workman in the employment of the defenders, and having sustained an injury by accident arising out of and in the course of his employment, is entitled to compensation under the Act founded on; and the sum sued for in name of compensation being reasonable, decree therefor ought to be granted as craved, with expenses.’

“The case was thereupon sent to the debate roll, and on this date I heard parties' procurators on the relevancy of the appellant's averments, when I found that the appellant had failed to make a relevant statement that (1) there was an accident within the meaning of the Workmen's Compensation Act, and (2) assuming there was an accident, said accident arose out of the appellant's employment.

“I therefore dismissed the application, and found the respondents entitled to expenses.”

The question of law was—“Whether on the facts condescended on the arbiter was right in dismissing the application as irrelevant?”

Argued for appellant—There was no doubt that the injury, viz., the sudden chill and consequent pleurisy, arose “out of” the appellant's employment— Millar v. Refuge Assurance Company, Limited, 1912 S.C. 37, 49 S.L.R. 67; Kitchenham v. Owners of s.s. “Johannesburg,” [1911] 1 K B 523. It was also an “accident” within the meaning of the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), for the passage of a disease germ into the body was an accident in the sense of the statute— Brintons Limited v. Turvey, [1905] AC 230. It was a “physiological injury,” just as much as a “strain” or a “rupture,” or the “inhaling of poisonous gas,” and these had been held to be accidents— Stewart v. Wilsons and Clyde Coal Company, Limited, November 14, 1902, 5 F. 120, 40 S.L.R. 80; Fenton v. Thorley & Company, Limited, [1903] AC 443; Kelly v. Auchenlea Coal Company, Limited, 1911 S.C. 864, 48 S.L.R. 768. When a workman sustained a physiological injury as a direct result of the work he was engaged upon, and in the reasonable performance of his duties, he met with “an injury by accident” within the meaning of the Act— Warner v. Couchman, [1911] 1 KB 351, per Fletcher Moulton, L. J., at p. 356. The cases of Steel v. Cammel, Laird, & Company, Limited, [1905] 2 KB 232; Broderick v. The London County Council, [1908] 2 KB 807; and Eke v. Hart Dyke, [1910] 2 KB 677, were not inconsistent with the appellant's contention, for in these cases it was not known, as it was here, what was the precise time, place, and circumstance in which the accident occurred. The cases of Blakey v. Robson, Eckford, & Company, Limited, 1912 S.C. 334, 49 S.L.R. 254; and the two lightning cases, viz., Andrew v. Failsworth Industrial Society, [1904] 2 KB 32, and Kelly v. Kerry County Council, 1 Butterworth 194, were distinguishable, for what was there questioned was not the occurrence of an “accident,” but whether the accident, which was assumed, had arisen “out of” the employment.

Counsel for the respondents were not called upon.