Scottish Court of Session Decisions

Mrs Jane Innes or Grant, widow of James Grant, respondent, claimed compensation under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), from Messrs G. & G. Kynoch, manure manufacturers, Isla Bank Mills, Keith, appellants, in respect of the death of her husband from blood-poisoning contracted, as alleged, whilst in their employment. The Sheriff-Substitute at Banff ( Stuart), acting as arbitrator, having awarded compensation, the employers appealed.

The Case stated—“The following facts were admitted or proved:—1. The said deceased James Grant for some time prior to the illness which terminated in his death was in the employment of the appellants at their manure works, Keith, and his wages were 25s. per week. 2. His work consisted in the handling and bagging of artificial manures, which are composed largely or wholly of bone dust. 3. On 31st January 1916, while engaged at his work, the deceased became ill with blood-poisoning, from which disease he ultimately died on 16th February. 4. Said illness was due to infection by germs known as streptococci and staphylococci. 5. The point of infection was a scratch or abrasion on the skin of the left leg. 6. It was not proved when or how the deceased received the said scratch or abrasion. 7. It was impossible to say with certainty when the infection occurred, though it was probably some days before the deceased became ill. 8. The germs known as streptococci and staphylococci are present in large numbers in the bone dust which the deceased had to handle at his work, but they are also to be found in decaying matter, in dust, and in the air, although in a much lesser degree. They may be found on the skin and clothes of persons of uncleanly habits. 9. I was satisfied, as the result of the medical evidence, that the infection which caused the illness and death of the deceased was derived from the poisonous germs contained in the bone dust which he handled in the course of his employment, and I so found in fact. 10. The respondent was the only dependent of the deceased, and she was wholly dependent on his earnings.

In these circumstances I held it proved that the blood-poisoning which caused the death of the said James Grant was an injury by accident within the meaning of the said Act, and arose out of and in the course of his employment, and I therefore found the respondent entitled to compensation, which I assessed at the sum of £195, and I found her entitled to the expenses of the process.”

The questions of law were, inter alia—“2. Was the blood-poisoning which caused the death of the said James Grant an injury by accident within the meaning of the Workmen's Compensation Act 1906? 3. Was there evidence upon which I was entitled to find that the death of the said James Grant was caused by an injury by accident arising out of and in the course of his employment within the meaning of said Act.”

The note to the award by the arbitrator was—“It is not disputed that the pursuer's husband died of blood-poisoning. Two species of germ were found, known as streptococci and staphylococci, being what the medical witnesses describe as a ‘mixed infection.’ I hold it proved that these germs are to be found in abundance in the material which the deceased was handling in the course of his employment. It appears that the point of infection was a scratch or abrasion on the deceased's left leg, but it is not proved when or where he scraped his leg. The defenders argued that the injury to the leg was the ‘accident,’ or at all events was an essential element in the accident, and since it was not shown that he injured his leg while in the course of his employment the pursuer's case must fail. I am unable to accept that view. It has been decided in the case of Brinton v. Turvey, [1905] AC 230, 42 S.L.R. 862, that the contracting of a germ disease, as e.g. anthrax, even although there be no lesion of the skin or ‘accident’ in the ordinary sense, may yet be an ‘accident’ within the meaning of the Act. In Brinton the point of infection was the eye, but the arbitrator expressly found that there was no abrasion; his judgment, as he expressed it, ‘was based upon the fact that there was a fortuitous intrusion of a foreign substance into the eye which by its presence there caused death.’ The House of Lords upheld the award of compensation on the ground that the infection which caused the workman's death was an ‘injury by accident.’ I think therefore that the question where or when the deceased injured his leg is immaterial. It is, however, essential to the pursuer's case to prove that the ‘fortuitous intrusion’ of the noxious germs occurred in consequence of the employment in which the deceased was engaged. This must always and necessarily be a matter of inference. In Brinton's case the inference may be said to have been inevitable, as the germs of anthrax are not found elsewhere than in specifically infected matter. In the present case there is admittedly a possibility that

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the deceased might have received the infection outside his work. The germs streptococci and staphylococci are found in decaying matter, and sometime even to a limited extent upon the human body where habits of cleanliness are neglected. But the inference which I think must be drawn from the medical evidence is that it is in the highest degree probable that the deceased received the infection from the germs contained in the bone dust, and highly improbable that he contracted it elsewhere. This was the opinion of Dr Taylor and Dr Smith, who both attended the deceased during his illness, and were therefore best qualified to express an opinion on the matter. I do not think it necessary to examine the evidence of the medical witnesses in detail. The question, as I have said, is one of probability more or less. It can never be matter of direct proof. Short of that I think the evidence sufficient to justify a finding that there was a ‘fortuitous intrusion’ of germs into the deceased's system, and that he received the infection from the material which he was handling in the course of his work. If I am right in reaching this conclusion the pursuer is entitled to compensation upon the merits. …”

Argued for the appellants—In the present case there was nothing in the nature of an accident arising out of and in the course of the deceased's employment. There had hitherto been no case where a mere infection incurred in such indefinite circumstances had been construed to fall under the term “accident” in the sense of the Act. Such infection had to be clearly connected with an accident sustained whilst the injured person was at work. A claim for compensation could not be substantiated if all that could be said was that it was “probable” that the infection had been acquired in the manner specified, since the deceased might have received the infection anywhere. The arbitrator had pronounced no finding as to when or where the infection had been communicated to the deceased. The applicant had to prove her case and she had not done so. Council cited the following cases:— Brinton8, Limited v. Turvey, [1905] AC 230, 42 S.L.R. 862; Alloa Coal Company v. Drylie, 1913 S.C. 549, 50 S.L.R. 350; M'Luckie v. Watson, 1913 S.C. 975, per Lord Kinnear app. Drylie ( cit.), 50 S.L.R. 770; Brown v. Watson, 1914 S.C. (H.L.) 44, 51 S.L.R. 492; Jenkins v. Standard Colliery Company, 5 B.W.C.C. 71; Wood v. Davis, 5 B.W.C.C. 113; Chandler v. Great Western Railway, 5 B. W.C.C. 254; Finlay v. Guardians of Tullamore Union, 7 B.W.C.C. 973.

Argued for the respondent—With regard to the argument that the arbitrator had not found in fact that the introduction of the virus was proved to have taken place in the course of the man's employment, the arbitrator had found all that a scientific investigation really could in the circumstances of the case disclose. It was always a question of greater or less probability whether a bacillus entered the system at any given time. The arbitrator had indicated what the probability was, and was fully entitled, after duly weighing up the facts of the case, to treat that as a finding in fact. He had held it not proved that the scratch by which the poison had entered the man's system had been caused in connection with the respondent's work. But the scratch did not constitute the “accident.” The “accident” was the fortuitous contact of the bacilli with the unprotected tissue of the scratch or abrasion. In Brintons ( cit.) no lesion of the skin had taken place. The bacillus had in that case entered through the uninjured eye, and yet it had been held that such an entry was an “accident” within the meaning of the Act. Counsel also referred to Glasgow Coal Company v. Welsh, 1916 S.C. (H.L.) 141, 53 S.L.R. 311.

At advising—