Scottish Court of Session Decisions

It was argued—and that is just the novel point in the case—that the condition of physical unfitness was a result of the accident in December. Well, my first remark upon that is, that although that may be so, it is not found to be so. We have not got a finding in fact that the man's impaired physical condition was due to the rick in the back. But even supposing it was, I do not think, on the best consideration I can give it, that the result would be different, and I think a fair test would be this—As a matter of fact the man's second period of had been with when he met with the accident in December. But suppose it had been with some other employer. Suppose the accident in December had happened under employer A and the heart dilatation under employer B. In that case it is quite clear that he could not have made any claim against employer B, because, if what I have said about the case is sound, the employer B would have said, “Oh, this is caused by your work pure and simple.” Well, then, could he have gone back to employer A and said, “Well, now, I claim in respect of my accident in December 1911.”—I assume that the compensation had not been ended in such a way as prevented him making a new application. Would not the employer A then have said—“It is quite true that you ricked your back, and if you could have shown that the effects of that rick in your back were still with you I should have paid you modified compensation; but you are not to saddle me with full compensation because you choose to put yourself to work for which you are entirely unfit.” I think that is a useful test. As I say, I do not think the case is free from difficulty. But in a case which is not free from difficulty I think we always take the view which has prevailed in the cases in the House of Lords, that when there is a case of doubt we are not entitled to interfere with the decision of the arbiter upon a question which really is not a question of law but a question of fact, because the principal question of fact which decides the matter is whether there exists a chain of causation between the accident of December 1911 and the aneurism of the aorta in August 1912? I am of opinion that there is not, and I think the appeal should be refused.

Lord Kinnear—I am of the same opinion. I agree with your Lordship that the question is one of considerable difficulty. I think we must be satisfied from the statement of the arbiter that there was no new accident between 7th December and 15th August 1912—I mean nothing had happened between those two dates which in any reasonable sense of the word could be called an accident. And therefore the question raised by the workman's application must be whether the incapacity which became apparent at 15th August can be traced as a remote or indirect consequence to the accident on 7th December or whether it cannot. I apprehend that is a question of fact, and that we are bound to accept the decision of the Sheriff upon that question of fact unless, upon his own statement of the specific facts which he says were proved to him, we can see that he had no evidence before him which could justify his conclusion. Now I am quite unable to say that the Sheriff had not evidence upon which he was able to decide one way or the other. I think he had a difficult question to decide, and it appears to me that there might be two points of view from which he required to consider it. He might have to consider, in the first place, whether there was anything to show that the original cause of the dilatation of the heart from which the man ultimately suffered was the accident on the 7th December, because it may have been shown that the accident that then happened started the evil which developed later as the man was working. Or again, it might be shown that he began work in such a defective physical condition, caused by the accident, as to expose him to the injury from which he actually suffered. Both of these are, in the first place, questions of fact, and I think the Sheriff negatives both. I am therefore unable to see any sufficient ground for disturbing his decision.

Lord Johnston—The learned Sheriff-Substitute has in my opinion come to a sound conclusion. But it is not a question for this Court, as the Sheriff puts it in the case before us, whether the arbiter was wrong in holding that the appellant's incapacity since 15th August 1912 was not due to the original accident of 7th December 1911, but whether there was before him evidence from which he could reasonably and therefore competently come to that conclusion.

A miner at the face on 7th December 1911, when throwing out lumps of coal, twisted his back and racked himself. He was off work till 17th February 1912 and received full compensation. He received reduced compensation as partially incapacitated to 3rd March, and still further reduced till 22nd May 1912. But on 1st May 1912 a reference was made to a medical referee, who pronounced that the injured man was then able for light work, and that if he could obtain it in the interim he would be fit for his usual work in three weeks. We are not told whether he got or accepted light work in May 1912. But on the 27th of that month he returned to his ordinary work. Down to July 1912 he worked regularly and full time and had nothing to complain of. But in July he began to feel pain in the cardiac region, and on 15th August 1912 he became totally incapacitated and was found to be suffering from aneurism of the heart. While the Sheriff found that the aneurism resulted from the continuous strain put on his heart muscles from 27th May to 15th August 1912 by work beyond his physical powers, he also found that there was no evidence to connect the aneurism as the cause of his present incapacity with the accident of 7th December 1911.

The appellant did not found his claim upon anything occurring during his period of work from May to August 1912. Had he done so there would have been a case for consideration (akin to Hawkins v. Powell's Tillery Steam Coal Company, L.R. 1911, 1 K.B. 988), though I think that there would then have been possible reason for excepting to the Sheriff's statement that the aneurism then discovered resulted from continuous strain when “doing work beyond his physical powers.” That appears to be a pure inference from the presence of the aneurism, and not as far as I can see established by any evidence as to the development of the aneurism.

But the appellant based his claim on the accident of 7th December 1911. That he met with an accident on that date is true. But he must prove that the injury of which he complains was an injury by or in other words resulting from this accident. I think the Sheriff was justified on the evidence in holding that he had failed to prove any connection between the two, and that therefore there is no ground for disturbing his judgment.

Lord Mackenzie—I am of the same opinion. There may or may not have been a chain of causation between the accident the workman met with on 7th December 1911 and his condition on the 15th August 1912. It was for the arbiter to say, and I am unable to come to the conclusion that the arbiter was not entitled to make the finding that he has made.