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germ infection, or that contracted under conditions unusual in the business, to be an injury by accident. However, the later cases, following it, have discarded such refinements and have held that any disease of sudden origin, if plainly attributable to the nature of the workman's employment, is an injury by accident. So, it has been held, that a heat-stroke sustained by a stoker in the stokehole of a steamer, a sun-stroke received by a sailor engaged in painting a vessel in dry-dock, and kidney disease due to a chill contracted while working waist deep in water, were injuries by accident. It is to be noticed that these cases go beyond the reasoning of the above opinions in Brinton's Ltd. v. Turvey. No foreign substance, however minute, had struck or invaded and injured the person's body. In none of them was there anything unusual in the work in which the workman was engaged; there was no series of unexpected events which brought about his disease; the only thing unexpected in any of these cases was that such work should injure the man engaged upon it, the only unknown and unusual factor was the physical condition of the workman, which rendered him subject to the disease contracted.

2. But it is not enough that the servant is injured while employed, whether the injury be by disease contracted or by some disturbance of his physical structure. In either case the injury must be "by accident." The term "by accident" has been consistently construed to include two different ideas: the first is that of unexpectedness; the second, that of an injury sustained on some definite occasion, the date of which can be fixed with reasonable certainty. The first idea would be as well conveyed by the word "accidentally" or by any phrase or phrases in which unforeseen harm is sharply contrasted with harm intended or expected to result. The latter idea, it is submitted, is not necessarily included in the term "accidental" or accidentally"; such words, especially if the phrases employed in such legislation are to be construed in accordance with the popular meaning of the terms used, do not appear necessarily to indicate the existence of an accident, but would seem to relate solely to the injury being neither intended nor expected.


7 Ismay, Imrie & Co. v. Williamson, [1908] A. C. 437, 1 B. W. C. C. 232.

8 Morgan v. S. S. Zenaida, 25 T. L. R. 446, 2 B. W. C. C. 193 (C. A., 1909).

9 Sheeran v. Clayton & Co., 3 B. W. C. C. 583 (1909). So in Kelly v. Auchenlea Coal Co., 48 Scot. L. Rep. 768 (Ct. Sess., 1911), it was held that pneumonia caused by inhalation of poisonous gas was an injury by accident.

While the English cases have consistently regarded the phrase "by accident" as indicating something unexpected, the earlier and later cases differ as to whether the cause of the injury must be some unforeseen and unusual operation of the business or condition of the plant, or whether it was enough that the injury itself was unexpected.

The earlier cases required that there must have been something unusual and unexpected in the external influences to which the sufferer was subjected in the course of his employment. No injury was regarded as sustained by accident where the workman was harmed while doing the very work he was employed to do under conditions usual thereto. No compensation was awarded unless there was some departure from the ordinary operation of the business or some unusual condition of the plant; it was not enough that, because of some peculiar physical condition of the workman, permanent or transitory, known to him or not known to him, the work, which he did not expect to injure him, in fact proved harmful; there must be some factor external to the claimant's physical condition.

The courts, however, were prone to regard rather minute departures from the ordinary course of the employment as being sufficient to amount to an unexpected external event.10

It was also held that the departure from the usual operation of the business might be some unusual act of the servant himself if done in the prosecution of the business, and this act might be some careless act of his own, an unintentional slip, or an act intentionally done but whose results, owing to some miscalculation, were not foreseen or designed." It is evident that there is much 10 So it was held that a strain received while lifting a pile of boards which had been stuck together by ice and whose removal thereby required an unusual effort was an accident. Timmins v. Leeds Forge Co., 83 L. T. 120, 16 T. L. R. 521, 2 W. C. C. 10 (1900). And so it was held that the claimant might recover compensation where his hand was jarred by a blow inaccurately struck by a fellow workman on the tool which the claimant was holding. Lloyd v. Sugg & Co., [1900] 1 Q. B. 481, 486, 2 W. C. C. 5.

11 In Boardman v. Scott & Whitworth, [1902] 1 K. B. 43, 4 W. C. C. 1, a workman was required to remove a beam from a loom and in lifting it he balanced it unevenly upon his shoulder. In order to get it into a position of equilibrium, he gave it an extra lift, the strain of which lacerated the muscles in his side; it was held that this was an injury by accident, the improper and unusual manner in which the workman himself had originally balanced the beam upon his shoulder being taken to be an unusual condition of the labor which the servant had not expected to encounter.

to be said for this interpretation; any other view would bar a stupid or ignorant servant from compensation where he had through some slight miscalculation subjected himself to injury which a more skilled and prudent workman would have avoided.

Since the case of Fenton v. Thorley, nothing more is required than that the harm that the plaintiff has sustained shall be unexpected.12 It is no longer required that the causes external to the plaintiff himself, which contribute to bring about his injury, shall be in any way unusual; it is enough that the causes, themselves known and usual, should produce a result which on a particular occasion is neither designed nor expected. The test as to whether an injury is unexpected and so if received on a single occasion occurs "by accident" is that the sufferer did not intend or expect that injury would on that particular occasion result from what he was doing. What was actually probable or even inevitable because of circumstances unknown to the sufferer is even more unimportant.13 The test is purely subjective to the injured workman.14

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12 In determining the question whether the injury was caused by an accident we must discriminate between that which must occur and that which need not necessarily occur in the course of the employment," Mathew, L. J., in Boardman v. Scott & Whitworth, supra; though it be a thing which has happened before and is likely to happen again. Neville v. Kelly Bros., etc., 13 Brit. Col. 125 (1907). In one class of case there is a tendency to regard as accidental injuries which the workman probably foresaw as very likely to result from some particular action intentionally undertaken. There are cases where a workman voluntarily encounters a very serious risk of injury in an effort to save his master's property from injury or to rescue a fellow workman from peril, and so, if successful, incidentally protecting his employer from liability to make compensation or diminishing the amount thereof. Rees v. Thomas, [1899] 1 Q. B. 1015, I W. C. C. 9 (workman injured while trying to stop his employer's runaway horses); Hapelman v. Poole, 25 T. L. R. 155, 2 B. W. C. C. 48 (1908) (menagerie attendant killed while trying to drive escaped lions back to their cage); Matthews v. Bedworth, 1 W. C. C. 124 (County Ct., 1899) (miner killed in going down shaft, after being warned of danger, in order to rescue fellow miner overcome by choke damp); London & Edinburgh Shipping B. v. Brown, [1904-1905] Session Cases 488, 7 Fraser 488 (Ct. Sess., 1905) (dock laborer killed in an attempt to rescue fellow worker overcome by noxious gas in the hold of a vessel which he was unloading). But see the strong dissent of Lord Kyllachy in the last given case. In none of these cases was the injury inevitable, though in most of them the danger was very great.

13 It is quite clear that the view advanced by Lord Shaw in Clover, Clayton & Co. v. Hughes, [1910] A. C. 242, 3 B. W. C. C. 775, that nothing is unexpected which is inevitable under conditions actually existing though unknown to everyone, is untenable; such a purely objective view of unexpectedness would clearly bar compensation in all but that small class of case where the injury results from some unusual combinations of causes.

14 In the late case of Clover, Clayton & Co. v. Hughes, supra, Lord Macnaghten,

By this definition the intention or expectation of anyone other than the injured workman is immaterial. An injury, unexpected by him, is none the less an accident because intentionally inflicted by some third person.15 The workman's miscalculation as to the consequences of an intentional act, under circumstances perfectly well known to him, makes the result, actually inevitable and patently so to all the by-standers, an unexpected result and so an injury by accident.

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The battle ground upon which the advocates of these different conceptions of unexpectedness have contended is that class of case which deals with the right of a person who, having some known or unknown physical weakness, is injured by doing the ordinary work which he is engaged to do, work which would not have been injurious to any man in normal health. Under the decision of Clover, Clayton & Co. v. Hughes there is an injury by accident arising out of the employment when the exertion required in doing the work is too great for the man undertaking it, whatever the degree of exertion or condition of health.16 It is immaterial whether the servant knows of his weakened physical condition, unless he is thereby led to expect injury to result to him as the result of a particular piece of work on which he is engaged. It is also immaterial whose definition of the words "by accident" in Fenton v. Thorley is constantly cited as authoritative, says: "An occurrence I think is unexpected if it is not expected by the man who suffers by it, even though every man of common sense who knew the circumstances would think it certain to happen."

15 So it was held in Nesbit v. Bayne & Burn, [1910] 2 K. B. 689, 3 B. W. C. C. 507, that the death of a cashier murdered while travelling by rail with a large sum of money to pay wages to his employer's miners, and in Anderson v. Balfour, [1910] 2 I. R. 497, 3 B. W. C. C. 588, a beating administered by poachers to a gamekeeper, were injuries by accident. But see contra, Murray v. Denholm & Co., 48 Scot. L. Rep. 896 (1911), where it was held that injuries inflicted upon non-union workmen by a mob of strikers who had invaded the employer's premises in order to drive out “blackleg" labor was not an injury by accident. The case of Challis v. London, etc. Ry., [1905] 2 K. B. 154, 7 W. C. C. 23, does not present this precise point, since the injury to the plaintiff, an engine-driver, was caused by stones thrown from a bridge by boys whose object was to throw them down the smokestack and not to hit the driver. The difficulty in the cases when an employee is intentionally injured by third persons having no connection with his employer's business is to determine whether it arises out of the business.

16 Lord Loreburn in Clover, Clayton & Co. v. Hughes, [1910] A. C. 242, 3 B. W. C. C. 775. So compensation was allowed in Dotzauer v. Strand Palace Hotel, 3 B. W. C. C. 387 (C. A., 1910), where the plaintiff's physical condition was such that the ordinary conditions of the work, innocuous to ordinary persons, had injured him. The plaintiff, a dish washer with a peculiarly sensitive skin, was seriously affected by an ordinary washing mixture.

that a person, having medical skill or even the experience of an ordinary individual, would, if he knew what the workman knows, realize that injury must result from the work done; the injury is still unexpected if the workman miscalculates his powers and so overtaxes his strength and injures himself, so long as the sufferer does not intend to injure himself thereby or expect that injury will result to him on the particular occasion.17

3. The injury, to be regarded as "by accident," must be received, or, if a disease, contracted, at a particular time and in a particular place and by a particular accident.18 And the accident must be something the date of which can be fixed.19 It is not enough that the injury shall make its appearance suddenly at a particular time and upon a particular occasion.20

The injury must result from some particular incident in the business, some act done, or condition encountered, which has in the course of the sufferer's employment caused the particular harm, whether disease or physical impairment, of which the plaintiff complains. This incident, whether an act done by him or by some

17 It is perhaps difficult, if not impossible, to reconcile the later case of O'Hara v. Hayes, 44 Ir. L. T. R. 71, 3 B. W. C. C. 586 (1910), with the decision in Clover, Clayton & Co. v. Hughes. In the latter case the plaintiff, who was suffering from aneurism of the aorta, was called upon to tighten up a nut with a spanner. The very slight exertion which was required caused the aneurism to break, resulting in his instant death; it was held that this was an injury by accident. In the case of O'Hara v. Hayes, a man affected with heart disease dropped dead while hurrying to the railway with a parcel weighing seventeen pounds. The county court judge held that in view of his disease there was evidence tending to show that the exertion involved in carrying this heavy parcel caused his collapse and death, but held that this was not an injury by accident. Two questions were submitted to the Court of Appeal: First, whether there was evidence to support this finding of fact; second, if such was the case, was the death an injury by accident? The Court of Appeai did not consider the first of these questions, but held that he was doing his normal work, there was nothing sudden, his death was not unexpected, he was liable to die any moment, and that the county court judge was right in holding that his death was not an injury by accident.

18 Cozens-Hardy, M. R., in Eke v. Hart-Dyke, [1910] 2 K. B. 677, 3 B. W. C. C. 482, 487.

19 Collins, M. R., in Steel v. Cammell, Laird & Co., [1905] 2 K. B. 232, 7 W. C. C. 9, II: "In my opinion it is clear from s. 2 (2) of the Act, that an accident must be something the date of which can be fixed." The section in question provides that: "proceedings for recovery under this Act, for compensation for an injury, shall not be maintained unless notice of the accident has been given as soon as practicable after the happening."

20 Steel v. Cammell, Laird & Co., supra. A workman who had worked for some time exposed to lead infection, became suddenly poisoned; this was not held to be an injury by accident.

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