Scottish Court of Session Decisions

Lord President—The question in this case is whether a severe strain of the muscles of his back suffered by the appellant while replacing a derailed hutch on a drawing road in a coal pit belonging to the respondents, in whose employment he was at the time, was an accident entitling him to compensation under the Workmen's Compensation Act 1897.

It is stated in the case that on 17th April last the appellant, while in the course of his employment with the respondents in the Pyotshaw Seam in No. 2 pit, had occasion to go out to the main heading for hutches, and that on arriving there he found that the driver on the road had carelessly thrown one of the hutches off the rails; that before he could get the hutch into his working place to enable him to fill it he had to replace it on the rails, and that while doing so he severely strained his back.

It is further stated in the case that although the replacing of the derailed empty hutch was not a part of the appellant's regular and ordinary work, it was an operation which he might be at any time expected to perform, and it is not stated that there was anyone else at the place at the time whom he could have got to replace the hutch. It thus appears that the operation of replacing the hutch was, in a reasonable sense, within the scope of the appellant's employment, and I consider that such a strain as he suffered in performing the work was an accident which occurred in the course of or arose out of his employment.

As to the character of the injury, I think, upon the statements contained in the case, that it was fortuitous and unexpected, and was thus, so far as I have already stated the facts, an occurrence which would in my judgment entitle the appellant to compensation under the Act.

The Sheriff-Substitute, however, states parenthetically that the appellant had been off work and drinking during two or three days prior to the 13th April, and that he worked harder than usual to hasten his recovery from the effects of the drink. The Sheriff-Substitute, however, does not state that the appellant's drinking four or five days previously had in any way incapacitated him from working or disturbed his powers of observation or judgment, and I therefore consider that this statement does not in any way exclude his right to compensation.

For these reasons I am of opinion that the question put in the case should be answered in the affirmative.

Lord Adam—The appellant while replacing a hutch on the rails severely strained his back, and the question put to us is whether this injury is the result of accident.

I am not going to attempt to define the term accident, but it humbly appears to me perfectly clear that the appellant's injuries were in the circumstances stated the result of an accident. These injuries were not such as would occur in the ordinary course of work, but were fortuitous and unexpected.

Suppose, for instance, that instead of straining his back he had broken his leg, would anyone say that that was not an accident. I am unable to see any difference between the two cases, and why an injury by strain should not fall within the same category as an injury by the fracture of a bone.

Lord M'Laren—I agree, and my observations will be confined to one point. It seems to me that the question is whether the word “accident” presupposes some external and visible or palpable cause ( e.g., the breakdown of machinery) from which injury results to a workman, or whether there may be an accident where there is no derangement of the machinery or plant or of the organisation of labour, and where the injury is entirely personal to the sufferer. To limit the application of the statute to the first class of cases would be to exclude a very large number of occurrences which are usually known as accidents. In the course of the argument I instanced the case of a railway servant engaged in shunting operations and crushed between two carriages without detriment to the carriages. Another illustration is the case of a man whose hand is crushed between wheels or rollers without any damage resulting to the machinery.

I think it is impossible so to limit the scope of the statute, and if a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in, I consider that this is accidental injury in the sense of the statute.

Lord Kinnear—I quite agree. I cannot see any reason to doubt that the injury in this case may quite properly be described as the result of an accident. It was not part of the design or scheme of operation in which the man was engaged; it was not intentional, and it was unforeseen. It arose from some causes which are not definitely ascertained, except that the appellant was lifting hutches which were too heavy for him. If such an occurrence as this cannot be described in ordinary language as an accident, I do not know how otherwise to describe it. It has all the elements which in previous cases have been held to distinguish an accident from an intentional or contemplated injury. As to the facts stated in the case as to the previous conduct of the workman, which are supposed to indicate some possible ground for holding that the accident might have been avoided, I think they are altogether irrelevant to the question before us. The only question we have to deal with is, whether the man was in fact injured by a cause which falls within the statutory description of an accident arising out of and in the course of his employment, and on the Sheriff's statement of the facts I have no doubt that he was.

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