Wilson v Chatterton

 

Wilson v Chatterton

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

HEALTH; Health and safety at work

COURT OF APPEAL

SCOTT AND SOMERVELL LJJ AND VAISEY J

7, 8, 28 FEBRUARY 1946

Workmen’s Compensation – Accident – Epileptic drowned – No danger to normal healthy person – Disease not sole cause of death – Construction of statutes

– Workmen’s Compensation Act, 1925 (c 84), s 1(1).

Judgments – Judicial decisions as authorities – Previous decisions of Court of Appeal inconsistent with general principles laid down by House of Lords.

A workman, a known epileptic, while working in his employer’s field, fell face downwards, in a fit, at a place where there was a rut half filled with water and

was drowned. Death was due to asphyxia. The place at which he was working was dangerous to him though there would have been no danger to a normally

healthy person. The county court judge made his award, under the Workmen’s Compensation Act, 1925, in favour of the employer, holding that on the facts

as found by him the case was covered by Lander v British United Shoe Machinery Co Ltd:—

Held – (i) Lander’s case was inconsistent with the general principles laid down by the House of Lords and with other decisions of the Court of Appeal, and the

court was therefore, in accordance with Young v Bristol Aeroplane Co Ltd, bound to refuse to follow it.

(ii) unless a weakness or illness was the sole cause of an accidental injury to, or death of, a workman, the employer was liable.

(iii) the natural meaning of the positive words in the opening lines of the Workmen’s Compensation Act, 1925, s 1(1), entitled the workman to judgment,

and there were no sufficient grounds for implying the exception upon which the judgment in Lander’s case and the judgment in favour of the employer alike

rested.

Lander v British United Shoe Machinery Co Ltd not followed.

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Notes

The real basis of the workmen’s compensation legislation is formulated in sect 1 (1) of the Act of 1925, which commences: ’If in any employment personal

injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall … ” In a sense this makes the employer an

insurer, and in ascertaining causation the problem is analogous to that of ascertaining a loss under a policy of insurance. It follows that to escape liability an

employer must show that a factor such as disease was not merely a contributory factor but the sole cause of the injury. There is no indication in the Acts that a

workman is to be excluded from benefit by reason of disease, and it is held, therefore, that the reasoning which distinguished Lander’s case from Wickes v

Dowell is unsound, and that Lander’s case should not now be followed.

As to Construction of the Workmen’s Compensation Acts, see Halsbury, Hailsham Edn, Vol 34, p 799, para 1133; and for Cases see Digest, Vol 34, pp

238, 239, Nos 2030–2042.

Cases referred to in judgment

Lander v British United Shoe Machinery Co Ltd (1933), 102 LJKB 768, Digest Supp, 149 LT 395, 26 BWCC 411.

Wicks v Dowell & Co Ltd [1905] 2 KB 225, 34 Digest 266, 2265, sub nom Wilkes v Dowell & Co 74 LJKB 572, 92 LT 677, 7 BWCC 14.

Martin v Finch [1937] 2 All ER 631, Digest Supp, 156 LT 447, 30 BWCC 99.

Ironmonger v Vintner (1938), 31 BWCC 90, Digest Supp.

Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293, [1944] 1 KB 718, 113 LJKB 513, 171 LT 113, 37 BWCC 51.

Brintons Ltd v Turvey [1905] AC 230, 34 Digest 238, 2035, 74 LJKB 474, 92 LT 578, 7 BWCC 1, HL, affg SC sub nom Higgins v Campbell & Harrison Ltd,

Turvey v Brintons Ltd [1904] 1 KB 328, CA.

Lysons v Knowles (Andrew) & Sons Ltd Stuart v Nixon & Bruce [1901] AC 79, 34 Digest 238, 2032, 70 LJKB 170, 84 LT 65, 3 BWCC 1, HL, revsg [1900] 1

QB 780, and revsg [1900] 2 QB 95.

Costello v Pigeon (Owners) [1913] AC 407, 34 Digest 238, 2037, sub nom Costello v Kelsall Brothers 82 LJKB 873, 108 LT 929, 6 BWCC 480.

Smith v Coles [1905] 2 KB 827, 34 Digest 238, 2034, 75 LJKB 16, 93 LT 754, 8 BWCC 116.

Wood v Wood (1923) 93 LJKB 538, 34 Digest 238, 2042, 130 LT 305, 16 BWCC 208.

Warner v Couchman [1912] AC 35, 34 Digest 318, 2604, 81 LJKB 45, 105 LT 676, 5 BWCC 177, HL, affg [1911] 1 KB 351.

Clover, Clayton & Co Ltd v Hughes [1910] AC 242, 34 Digest 273, 2316, 79 LJKB 470, 102 LT 340, 3 BWCC 275.

Trim Joint District School Board of Management v Kelly [1914] AC 667, 34 Digest 238, 2040, 83 LJPC 220, 111 LT 305, 7 BWCC 274, HL, affg, SC sub nom

Kelly v Trim Joint District School Board of Management 6 BWCC 921, CA.

Fenton v Thorley & Co Ltd [1903] AC 443, 34 Digest 266, 2264, 72 LJKB 787, 89 LT 314, 5 BWCC 1.

Fife Coal Co Ltd v Young [1940] 2 All ER 85, [1940] AC 479, Digest Supp, 109 LJPC 49, 162 LT 344, sub nom Young v Fife Coal Co Ltd 33 BWCC 107.

Flanagan v Ackers Whitley & Co (1926) 19 BWCC 399., Digest Supp.

McFarlane v Hutton Brothers (Stevedores) (1926), 96 LJKB 357, Digest Supp, 136 LT 547, 20 BWCC 222.

Moore v Tredegar Iron & Coal Co Ltd (1938), 31 BWCC 359, Digest Supp.

Appeal

Appeal of applicant from an award of His Honour Judge Shove, made at Scunthorpe and Brigg County Court, and dated 29 October 1945.

Marven Everett for the appellant.

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

F W Beney KC and Neil Lawson for the respondent.

Cur adv vult

28 February 1946. The following judgment was delivered.

SCOTT LJ delivering the judgment of the court]. In the present case the deceased workman met with an accidental death by drowning. At that moment he

was on his employer’s premises doing his employer’s work in accordance with his duty. He was working in a beet field. There had been wet weather and the

furrows in the field had become filled with water. He was an epileptic. This was known to his employer but we do not think that knowledge increases, or that

ignorance would diminish the employer’s liability. He had an epileptic fit and fell face downwards at a place where there was a rut half full of water. His

death was due to asphyxia. No doubt owing to his fit he was unable to move his face out of the water. The place was dangerous to him, though there would

have been no danger to a normally healthy person.

􀂭 432􀀉

The county court judge made his award in favour of the employer, holding that on the facts as found by him the case was covered by the decision of this

court in Lander v British United Shoe Machinery Co Ltd. In that case the workman, a known epileptic, had a fit while crossing a hard floor to the lavatory.

He fell and fractured his skull on the hard floor. The floor was held to be not in itself dangerous to normal people. This court reversed the county court judge,

holding that the workman could not recover, distinguishing Wicks v Dowell, on the ground that the workman in that case, also an epileptic, was required to

stand at a place which was dangerous in itself, namely, an open hatchway down which he fell as a result of a fit. In Martin v Finch, and Ironmonger v Vintner,

also cases of epileptics, Lander’s case was considered by this court but distinguished on the facts. Counsel for the appellants in the present case also sought,

as we think unsuccessfully, to distinguish Lander’s case; but he also submitted that Lander’s case was wrongly decided and was inconsistent with general

principles laid down by the House of Lords and with other decisions of this court. We agree with that submission, and act upon the liberty given us by the

decision of this court in Young v Bristol Aeroplane Co Ltd. There this court, whilst affirming the general rule that its own previous decisions are binding upon

it, enunciated three exceptions, of which the first two were:

‘(1) that the court is entitled and bound to decide which of two conflicting decisions of its own it will follow; (2) that the court is bound to refuse to

follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the house of Lords.’

We have come to the conclusion that we are free and indeed bound to refuse to follow Lander’s case; the more so as the question at issue in the present appeal

is of fundamental importance to the right understanding of the real basis of workmen’s compensation, which is formulated in the first two and a half lines of

sect 1(1), of the Act of 1925:

‘If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall …

’

It is essential that these words should be construed as a whole with due regard to the light thrown upon each word by the other words associated with it. As an

illustration of this aid to construction and the danger of disregarding it we would point out that insufficient attention is sometimes given to the word “caused”

and its proper meaning. Except that the original Act—that of 1897—was restricted to certain categories of workmen, there has been no change in the language

used by Parliament in these two and a half lines. The Acts of 1897, 1906 and 1925 are in that respect identical, and that language has to be construed in its

ordinary and popular meaning: see per Lord Halsbury LC in Brintons v Turvey ([1905] AC 230, at pp 232, 233), following the same train of thought as he

expressed in Lysons v Knowles ([1901] AC 79, at p 85). The same thought was subsequently expressed by Lord Loreburn (who dissented) in Costello v

Owners of the Ship Pegeon ([1913] AC 407, at p 413), where, treating the legislation as remedial, he said:

‘We ought not to read into it an exception without having in mind the nature of the remedy which is proposed by the Act itself.’

A consequential principle of statute interpretation is involved. As was said by Mathew LJ in Smith v Coles ([1905] 2 KB 827, at pp 831, 832):

‘This court would be slow to … introduce exceptions that have not been made by the legislature.’

and by Scrutton LJ in Wood v Wood ((1923) 16 BWCC 208, at p 216):

‘I am rather disposed to think, though I do not know of any express authority for it, that, when you have an Act which is intended to lay down a

general principle, you construe the exceptions rather against those who put them forward.’

In our view the natural meaning of the positive words in the two and a half lines in question entitles the appellant to judgment, and we see no sufficient ground

for implying the exception upon which the judgment in Lander’s case and the judgment below in favour of the employer alike rested.

􀂭 433􀀉

The general purpose of the legislation was, beyond all doubt, to put upon the employer an obligation to pay to his workman or the workman’s

representatives compensation for the result of personal injuries incidental to his employment, for which no action for damages lay either at common law or for

breach of statutory duty. In this sense it made the employer an insurer, and the insurance aspect is important, for it helps to guide interpretation where the

statutory language is open to doubt. The object of the legislation was essentially social, and it was no part of the purpose of Parliament to make the economic

burden rest finally on the back of the individual employer. It was realised from the start that the risk would be re-insured, as in fact happened, and through the

insurance premiums, as an item in the cost of production or of services rendered, the community at large of course has had to carry the ultimate burden of the

social reform in the price of goods or services. At an early stage in the judicial interpretation of the legislation, it was realised that the problem of ascertaining

causation in the case of accidental injuries within the Act was analogous to the problem of ascertaining a loss under a policy of insurance. In other words the

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

normal rule of causa proxima applied; see the judgments in the Court of Appeal in Wicks v Dowell, where the court acted on the insurance principle. It is true

that the words “arising out of and in the course of the employment” impose two conditions precedent to the statutory obligation of the employer, and that the

words “out of” introduce a factor which might seem to throw back the inquiry into causation one step further from the final effect than the words “in the

course of.” But so to read the condition is, in our opinion, to mis-read it. It is only if the accidental injury has no causal connection with the employment at all

that it can be said not to arise out of it, though it may occur in the course of it. It is for that reason that the employer cannot escape liability by showing that

some factor such as disease is a predisposing or even contributing cause of the injury; he must show that it is the sole cause, as has been said frequently in

decided cases.

The statutory language contains no words which qualify its absolute generality. Any person, man, woman or child, who is a workman, if employed is

entitled to compensation for injury accidentally caused, which arises out of and in the course of the employment. There is no pre-requisite of a medical

examination to qualify him for admission to the benefit of the Act. There is no hint of an exclusion from these benefits of any person because at the moment

of injury he is suffering from disease, or any physical or mental disability which may render him more prone to accidental injury arising out of his

employment. There are many cases cited in Willis’s Workmen’s Compensation, 37th Edn, pp 8–14, which would have been decided adversely to the workman

had such been the meaning of the statutory language. Indeed, the unqualified phrase “injury by accident” is inconsistent with such a reading of the statutory

obligation on the employer. As was pointed out by Lord Loreburn LC in Warner v Couchman ([1912] AC 35, at p 38), the words are “injury by accident” not

“by an accident.” It suffices if the injurious event is in any reasonable sense accidental; and that event must be judged from the workman’s point of view:

Clover v Hughes ([1910] AC 242, at p 245), and Trim School v Kelly. Both those decisions are in our view directly relevant to the present case; indeed when

considered in the light of Fenton v Thorley, and Fife Coal Co Ltd v Young, they are in truth conclusive in favour of the workman. Flanagan v Ackers Whitley,

McFarlane v Hutton, and Moore v Tredegar Iron Co, are all decisions in which the Court of Appeal followed the principle, as we see it, laid down by the

House of Lords in the decisions we have mentioned, and all three were cases in which the workman suffered from weakness or disease of the heart, and death

occurred without his being subjected to any abnormal strain. The principle which emerges is that unless the weakness or illness of the workman is the sole

cause of the accidental injury to, or death of, the workman, the employer is liable. We can see no difference in principle between a bodily condition involving

recurrent fits of epilepsy on the one hand, and on the other the various contributing causes unconnected with the employment which were features of the

decisions we have cited. Some of the relevant decisions appear in Willis’s Workmen’s Compensation, 37th Edn, in the sub-division of his text entitled

“Personal Injury by Accident” (pp 8 et seq), and some in that of the words “Arising out of the Employment” (pp 44 et seq), 􀂭 434􀀉 but the dividing line

between the two topics is artificial. What the court has to interpret is the whole of the complex conception expressed in the first two and a half lines of sect

1(1), and in our view it is dangerous and misleading to break that substantive provision up into bits, then to attempt to ascertain the meaning of each bit, and

finally to add—or fail to add—the bits together in order to get the meaning of the whole. We infer that sick men and partially unfit and partly disabled men in

employment were intended by Parliament to get the benefits of the Act just as much as the hale and hearty and perfectly fit men; for any intention of

Parliament to exclude them must have found expression, and there is not a hint of it. The historic addition of industrial diseases was made not because

diseased men had no right of recovery from their employer under the statutory provision of compensation for injury by accident, but because it so often

happened in diseases of the types to which legislation was directed that the unfortunate workman did not know who was the employer for whom he was

working when he first contracted the disease. It was chiefly, we think, to get over that difficulty that the disease provisions which now appear in Pt II of the

1925 Act were passed.

In the case of Ironmonger v Vintner, to which one of us was a party, it may be that the court did not realise how important and far reaching was the

difference of principle between Wick’s case and Lander’s case and that for that reason the court was content to distinguish Lander’s case on the facts. The

present appeal has, however, made it necessary to consider the issue of principle, and on principle we think that Lander should now be treated as bad law. On

this basis, for the reasons we have set out, we consider that the facts in the present case bring it within the words of the Act and that the appeal should be

allowed with costs, and an award made in favour of the workman.

Appeal allowed with costs.

Solicitors: Pattinson & Brewer agents for Williams & Co Peterborough (for the appellant); Tuck & Mann agents for Davies & Thornton, Hull (for the

respondent).

C StJ Nicholson Esq Barrister.

[1946] 1 All ER 435