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other person or the encountering of some condition, must be shown to have occurred at some reasonably definite time. It is true that under Fenton v. Thorley and Clover, Clayton & Co. v. Hughes the incident, the act done or the condition encountered, need not be unusual except in this, that on the particular occasion its result is unexpected. The element of unexpectedness, inherent in the word
accident,” is sufficiently supplied either if the incident itself is unusual, the act or conditions encountered abnormal, or if, though the act is usual and the conditions normal, it causes a harm unforeseen by him who suffers it. By this construction injury of gradual growth, as such not the result of some particular piece of work done or condition encountered on a definite occasion, but caused by the cumulative effect of many acts done or many exposures to conditions prevalent in the work, no one of which can be identified as the cause of the harm, is definitely excluded from compensation. And this is so whether the injury complained of is a disease contracted or an impairment of the physical structure of the body.21 So stringent is the requirement that the injury should be due to some particular incident in the employment, that it has been held not enough that the complainant can point out a very few occurrences from some one or more of which the harm must have resulted.22
21 It has been held that the following diseases are not injuries by accident: Lead poisoning due to the continuous exposure to infection, though taking the form of a sudden paralytic seizure, Steel v. Cammell, Laird & Co., supra; enteritis contracted by constantly inhaling sewer gas, in contact of which the complainant's employment habitually brought him, Broderic v. London County Council, (1908) 2 K. B. 807, 1 B. W.C.C. 2819; “beat hand,” "beat knee,” miner's diseases caused by continued friction, Marshall v. East Holywell Coal Company, Gorley v. Backworth Collieries, 21 T. L. R. 494, 7 W. C. C. 19 (C. A., 1905); with which compare Thompson v. Ashington Coal Co., 17 T. L. R. 345, 5 W. C. C. 71 (1901), in which it was held that the claim that is due to a particular piece of coal working itself into the knee of a miner who frequently had to work upon his knees was an injury by accident. The following impairments of the physical structure of the body have been held not to be injuries by accident: Paralysis caused by continuous overstrain due to the complainant being forced to ride a carrier tricycle in the course of his employment, Walker v. Hockney Bros., 2 B. W. C. C. 20 (C. A., 1909); and a gradual breakdown of the heart due to continued strain of overwork, Coe v. The Fife Coal Co., 46 Scot. L. Rep. 328, 2 B. W. C. C. 8 (Ct. Sess., 1909). How narrow is the line of demarcation is shown by comparison of this case with McInnes v. Dunsmuir & Jackson, 45 Scot. L. Rep. 804, 1 B. W. C. C. 226 (Ct. Sess., 1908), where it was held that cerebral hemorrhage was an injury by accident, where an artery in the brain, weakened by long-continued overwork, suddenly burst as the result of a particular act of over-exertion done in the course of the sufferer's employment.
22 Eke v. Hart-Dyke, (1910) 2 K. B. 677, 3 B. W. C. C. 482. A gardener three sev
Under these decisions two serious questions arise: First, whether the word “injury" should be retained without qualification; second, whether the words “by accident" should be omitted or retained, or whether some other word or phrase, such as “accidentally," should be used in lieu thereof.
1. In view of the English decisions holding that disease suddenly contracted in the course of employment is an injury by accident, it is evident that the word “injury” should not be used without qualification, unless it is desired that disease contracted should be a subject of compensation. The Act of 1897, under which the cases which have definitely attached this broad meaning to the word “injury” arose, made no provision for the relief of workmen incapacitated by illness or disease. Had the Act of 1897 contained the same provision for compensation for sufferers from occupational diseases which appears in the Act of 1906, it seems highly probable that compensation would be allowed only where injury is done to the integrity of the human body, as is the rule in Germany, where sickness, however caused, is cared for by a special fund raised by the joint contributions of the state, the employers, and the workmen, and administered by the latter.
The English courts, in their efforts to remedy the omission of Parliament to provide relief for workmen incapacitated by disease, have opened a wide door to claims of a highly litigious character. At first glance there appears little or no abstract justice in giving relief to one whose physical structure is violently deranged while at work, and denying it to one who is incapacitated by disease clearly proven to have been contracted in his employer's service. But there is a great practical difference between the two. Where there is a distinct change in the physical structure of the plaintiff, it is in the vast majority of cases possible and even easy to show some definite occurrence in the course of his service which has produced it, or at least the injury is generally one not likely to result from any other cause. The difficulty which will arise if compensation is allowed for disease lies in the fact that not only its existence but its
eral days opened certain drains and cesspools; it was held that even if his death was due to blood poisoning resulting from the emanations from the cesspools, it was not an injury by accident, since it was impossible to point out a particular occasion upon which he was poisoned; Kennedy, L. J., dissenting.
origin can as a rule be proved only by the statement of the sufferer himself, corroborated by the testimony of his physician, which usually goes no further than a statement that the disease might be caused by some incident of the employment. Such claims are not only particularly easy to fabricate, but there is a great tendency in a sufferer to ascribe, without conscious dishonesty, his illness to some cause from which he may hope to obtain relief. But even if they are honestly put forward, the success or failure of such claims must depend upon a highly doubtful issue of fact. If such claims be allowed there will be a natural tendency on the part of every workman who suffers from disease to ask the opinion of the court whether it arose out of the business, and even where it is fairly clear that the illness did so arise, the interest of the employer will naturally induce him to contest the claim in the hope that the opinion of the court may be in his favor.
Disease should be dealt with, if at all, by providing, as in Germany, for the relief of all servants incapacitated by illness no matter what its origin, preferably out of some fund provided by the joint contributions of the employers and the workmen themselves; and this fund should, it seems, be administered, as in Germany, by the workmen themselves, who will have a better opportunity to detect malingering and to prevent it by their disapproval of it, induced by their liability for part of the loss caused by it. This relief should probably be restricted, as in Germany, to illness of a moderate duration. Total incapacity caused by illness is cared for in Germany by the invalidity insurance, which forms a part of the old age insurance. As there is no corresponding fund out of which permanent disablement can be relieved, it would seem that provision may well be made for compensation for what are technically known as occupational diseases. It is true that in this way total incapacity from non-occupational diseases, clearly contracted in the employer's service, will go uncompensated; but on the whole the added certainty in the administration of the law seems more than to compensate for this, even admitting it to be unjust to a few deserving sufferers. Under the German system for relieving sufferers from temporary illness, the workman being entitled to relief if incapacitated by disease, whether contracted in the employment or at home, the only issue which can be raised is the existence of the disease and the extent of the incapacity caused thereby; that most difficult issue, the origin of the disease, is completely eliminated. And while this issue must arise in any act giving compensation for occupational diseases, such diseases being those to which workmen in particular employments are by reason of the character of the work peculiarly subject and being of a sort not likely to be otherwise contracted, their very nature makes it reasonably certain that they are contracted in the employment and not elsewhere.
2. As has been seen, the term "by accident” differs from the term “accidental” in that it requires that the injury shall be sustained on a single particular occasion the date of which can be fixed, and so excludes any injury, whether the disturbance of the physical structure of the body, or disease, which is of gradual growth. Unless it is desired to allow compensation for diseases or bodily impairments of gradual growth, it is evident that the term “by accident" should be retained, and that it should not be omitted or the word "accidental " substituted.
While there may seem no particular justice in allowing compensation for an injury which happens on a definite occasion, and excluding compensation for one of gradual growth though just as much the result of the work upon which the sufferer is employed, there are practical considerations which make it desirable to do so. One of the most valuable provisions in the English acts (and one which is being copied in most of the American legislation upon the subject) is that contained in sub-section 2 of section 2, which requires that notice of the accident be given to the employer "as soon as practicable after the happening thereof.” The master is thus able personally to investigate the matter soon after its occurrence and verify the justice of the claim or detect any fraud or imposition; and so it conduces to the settlement of well-founded claims without further litigation and leads to the discovery of malingering and simulation. If the date of the accident be known, it is usually possible to find impartial witnesses who have observed and can remember the occurrence. This is certainly so if the injury is due, as it usually is, to some abnormal incident in the operation of the business, to some unusual act of the claimant himself or his fellow workmen, or to some unusual condition of or breakdown in the machinery or plant. Even if there is nothing more than a sudden and unexpected injury the result of some normal and usual operation or condition of the business, this in itself is generally sufficiently striking to make it probable that the circumstances will be observed and remembered by others than the claimant himself. Thus the employer is able by independent testimony to verify the workman's claim, and either settle it at once or to demonstrate so clearly its fraudulent character that the workman will abandon it.
And even if the claim is neither settled nor abandoned, but must be litigated, there is apt to be reasonably impartial testimony upon which the court can proceed in awarding compensation.
If, on the other hand, compensation is allowed for injury not happening upon any definite occasion, it is evident that notice of the injury must be all that can be required, with perhaps an added requirement that the causes which are alleged to have brought it about shall be set forth. If compensation be allowed for injuries or diseases of gradual growth, it is manifestly impossible for the servant to assign any specific occurrence or occurrences as the cause of his disablement; at most he can merely state that he was engaged upon a work of a sort capable of producing injury of the sort of which he complains and that he attributes his disability thereto. Such claims are incapable of any verification by impartial testimony, their validity is a mere matter of opinion or judgment; the workman's story can be corroborated, if at all, only by the testimony of medical experts, that the work upon which he was engaged is capable of producing the injury in question. If a definite occasion be set out during which the assigned cause of the injury is alleged to have operated, it is at least possible to prove that on that occasion there was no other cause existing equally capable of producing the injury. If it is enough to ascribe the injury to causes operating generally during a protracted period, as that of employment at a particular sort of work, it will usually be impossible to say whether during that period the workman may not have been exposed to other causes, external to the business, which might as probably have produced the injury, unless the injury is one which, like certain occupational diseases, is plainly the result of a cause peculiar to the business and therefore extremely unlikely to be encountered elsewhere.
A wide door will be opened to fraudulent claims, and it must not be forgotten that the right to compensation for injuries of this sort will act as a strong incentive to workmen to attribute every disease, every wearing out of their physical powers, to their labors in their