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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Walker v. Murrays [1911] ScotLR 741 (16 May 1911)
URL: http://www.bailii.org/scot/cases/ScotCS/1911/48SLR0741.html
Cite as: [1911] SLR 741, [1911] ScotLR 741
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SCOTTISH_SLR_Court_of_Session
Page: 741↓
Court of Session Inner House First Division.
(Single Bills.)
v.
(Ante, March 8, 1911; supra, p. 575.)
The case is reported ante ut supra.
On 16th May 1911 Ellen Storey Walker, the claimant, presented an amended note, in which she stated that the facts proved in respect of which the claim for compensation was founded were as follows:— “(1) The deceased, who was sixty-four years of age at the date of his death, suffered for many years from hernia, which in January 1909 necessitated the operation known as the radical cure. (2) He was discharged as cured, and thereafter resumed his work, part of it manual, as farm steward at Mervinslaw, Jedburgh, and for a year was free from symptoms of hernia and did not require or wear a truss. (3) In January 1910, on several occasions, a small rupture on his right side
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came down after slight exertion but could be returned without assistance. Deceased accordingly resumed wearing a truss and was never off work owing to said rupture. (4) In February 1910 an improvement was made in the pad of said truss, and thereafter said rupture remained up until it came down on 27th April 1910. (5) On 12th April 1910 he had an attack of catarrhal jaundice, from which he recovered by 25th April. (6) On 27th April he walked, apparently quite well and wearing his truss, 2 miles over moorland to Ashtrees Farm to fetch a sow belonging to respondents. (7) He drove said sow home loose in front of him, with the assistance—for about half the distance — of the farmer at Ashtrees. (8) The route taken was not that of the outward journey, but like it was a track over rough moorland crossed by sheep drains and gullies. (9) About a mile and a half from home, there being still to be traversed two gullies and several sheep drains and such heather bents and bracken as necessitated high-stepping and rendered stumbling more than probable, said farmer left deceased, who drove said sow the remainder of the journey alone. (10) During said mile and a half said rupture came down and became strangulated, as certified by medical certificate. Deceased intimated his condition to pursuer immediately after his return. He also complained of feeling ‘fair done.’ (11) Deceased was operated on for strangulation, but died of exhaustion following on the operation, all on 29th April. (12) Determining factors of hernia and strangulation are exertion and strain.” 1 2 The note further stated—“The learned arbiter held that in the absence of evidence of something overt having occurred, such as a fall, jerk, or stumble, he was not entitled to draw the inference that deceased had met with an accident.”
The questions of law proposed to be submitted for the opinion of the Court were — “Whether the arbiter was not entitled to draw the inference that there was an accident? and Whether on the facts above set forth such was not the necessary inference to be drawn, and that the claimant was accordingly entitled to compensation under said Act?”
The respondents objected to the amended note on the ground that it still failed to disclose any facts from which an accident was necessarily to be inferred.
Argued for appellant—The facts proved were such as would entitle an arbiter to infer that an accident had happened. The deceased, who was wearing a truss and who had in the course of his employment to traverse some very rough moorland, came home ruptured. Esto that no fall or stumble was averred, that was immaterial, for the mere slipping of the truss, and the consequent rupture, would be an accident in the sense of the statute— Stewart v. Wilsons and Clyde Coal Company, Limited, November 14, 1902, 5 F. 120, 40 S.L.R. 80. Direct evidence was not necessary, provided the reasonable inference was that an accident had happened— Grant v. Glasgow and South-Western Railway Company, 1908 S.C. 187, 45 S.L.R. 128; Mackinnon v. Miller, 1909 S.C. 373, 46 S.L.R. 299. Esto, however, that something overt must be averred, enough was averred here, for very little would suffice— Clover, Clayton, & Company, Limited v. Hughes, [1910] AC 242. [ Lord Kinnear referred to Wakelin v. London and South-Western Railway Company (1886), L.R., 12 A.C. 41, per Lord Watson at p. 49.]
Mr Gillon has taken advantage, of the allowance given him to put in an additional minute, and that minute has been written with great frankness, and has carefully, I think, not gone one inch beyond what could be proved. I am therefore content to take it as if the facts stated in the minute had been embodied in findings by the Sheriff. All the facts in the minute were undoubtedly before the Sheriff, and the Sheriff found that there was no such proof of facts before him as drove him to the inference that the man's death was occasioned by an accident arising out of his employment. The Sheriff went on to say that he did not think it was necessary to state a case, because it was a mere question of fact. Whether he was right in that or not it is not necessary to inquire, if we are now taking it as if all these facts had been stated by him in a stated case; and I confess I think there is no material that would at all justify us in finding that the Sheriff was wrong.
The matter always remains that there is an onus of proof upon the applicant, and although, of course, the proof need not be direct, although it is enough if facts are proved from which any reasonable man ought to deduce a certain thing, still I think here the facts fall short of those that render any such inference a necessity. It is quite true, and I think it is quite consistent with the facts to suppose, that the inducing cause of the rupture might have been a strain which was met with by this man during the course of his employment; but, on the other hand, the strain might have been caused by something outside of his employment.
In the next place, I do not think it is shown that it may not be possible for an old rupture to come down without what I may call any peculiarly exciting cause exterior to the man; but apart from that it is quite evident that there might be forms of strain other than those arising out of his employment, such as, for instance, a severe attack of sickness or other things which might produce a strain sufficient to affect the rupture; and I confess I think the passage quoted by Lord Kinnear in the course of the debate from Wakelin v. London and South-Western Railway Company, 1866, 12 A.C. 41, is very much in point. There, in an action on the ground of negligence, Lord Watson pointed out that although it was very probable that the
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Now I think the result of the statement contained in the note really comes to this, that this man was ruptured; that the rupture became strangulated after he had, in the course of his employment, walked for five and a half miles over rough ground to fetch a sow belonging to his employer; that there were materials before the Sheriff from which he might have thought that there were strong reasons for conjecturing that the strangulation had been caused by the exertion and strain involved in this walk over the rough ground; but that the Sheriff also thought that although there might be ground for such conjecture there was no evidence before him from which he ought to draw the inference the strangulation was in fact so occasioned. Now if that was the state of the Sheriff's mind, the question for him was one of fact and of fact alone, and I do not think it is possible for this Court to say that the Sheriff was wrong. I think it would be quite out of the question to say that no reasonable judge could have come to the conclusion that the accident was not proved.
The Court refused the prayer of the note.
Counsel for Appellant— Gillon. Agent — James D. L. Melrose, W.S.
Counsel for Respondents — Moncrieff. Agents — Fraser, Stodart, & Ballingall, W.S.