Scottish Court of Session Decisions

In an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) in the Sheriff Court at Glasgow, between John Borland ( appellant) and Watson, Gow, & Company, Limited ( respondents), the Sheriff-Substitute ( Fyfe) refused compensation and stated a case for appeal.

The following facts were found proved:—“(1) That appellant is a range-fitter to trade. (2) That about three years ago, whilst in the employment of Messrs Mechan & Son at Whiteinch, he sustained a wrench to his knee, and in respect thereof claimant received compensation under the Workmen's Compensation Act for a period of some weeks. (3) That subsequently on several occasions the result has been that, when at work upon his knees, the knee gave him trouble whilst in the act of raising his body from the ground, causing him pain at the moment, but not preventing him continuing to work. (4) That on 4th December last appellant was in the employment of the respondents. (5) That he was then, in the course of his work, kneeling upon the knee which had previously sustained the injury. (6) That in rising from the kneeling position he again felt the same kind of pain. (7) That on being taken to the infirmary it was found that the internal cartilage of the right knee joint was torn. (8) That an operation was performed on or about 22nd January. (9) That he was discharged from the infirmary on 27th February 1909. (10) That he was not then fit for work. (11) That he is not yet fit for work. (12) That the rupture of the knee cartilage on the 4th December 1908 was the result of the strain experienced when appellant was in other employment than that of the respondents.”

On these facts the Sheriff-Substitute found that the appellant had failed to prove that he was injured by accident arising out of and in the course of his employment with the respondents, and refused the application.

The question of law for the opinion of the Court was—“Whether the injury which the appellant sustained on 4th December 1908 was an accident arising out of and in the course of his employment as a workman while with the respondents, entitling him to compensation under the Workmen's Compensation Act 1906.”

On 6th July 1911, after counsel had been heard, the Court remitted to the Sheriff-Substitute to answer certain questions.

The questions and answers were as follows—“(Ques. 1) Was the cartilage in the appellant's knee ruptured when he was injured in the service of Messrs Mechan & Son at Whiteinch, and received compensation for a time for inability to work?—(Ans. 1) The evidence does not disclose whether the cartilage was ruptured then. (Ques. 2) If there was rupture, was it completed or was it increased, on 4th December 1908, by exertion made on that date?—(Ans. 2) Assuming there was a rupture, it was increased by the occurrence of 4th December 1908. (Ques. 3) Were the symptoms which showed themselves on 4th December in any way different from these which had shown themselves on previous occasions when the appellant required to kneel when working?—(Ans. 3) No. (Ques. 4) Did the appellant receive any new injury while in the respondent's employment, or was the condition in which his knee was found to be on 4th December 1908 produced by the accident three years before, as a natural result of that injury?—(Ans. 4) It is not possible from the evidence to say. (Ques. 5) In what circumstances, and by whom and when, was he taken to the infirmary?—(Ans. 5) On 4th December 1908, when he rose from the kneeling position and felt pain in knee, it was about twelve o'clock, but he stayed on till five, when he was assisted home. At home he was treated by his family doctor till 22nd January, when he was sent to the infirmary by his own doctor.”

Argued for the appellant—On 4th December 1908 the condition of the appellant's knee changed for the worse, with the result

Page: 11↓

that he then became incapacitated. The cause of the incapacity was rupture of a cartilage. That was an “accident,” or was the result of an accident— Hamlyn v. Crown Accidental Insurance Company, Limited, 1893, 1 Q.B. 750; Stewart v. Wilsons and Clyde Coal Company, Limited, November 14, 1902, 5 F. 120, 40 S.L.R. 80; Fenton v. Thorley & Company, Limited, 1903 AC 443. It was immaterial that the appellant was rendered peculiarly liable to the injury which he sustained on 4th December either by previous accident or disease— Clover, Clayton, & Company, Limited v. Hughes, 1910 AC 242; Ismay, Imrie, & Company v. Williamson, 1908 AC 437; Golder v. Caledonian Railway Company, November 14, 1902, 5 F. 120, 40 S.L.R. 89; Martin v. Barnett, 1910, 3 Butterworth's Workmen's Compensation Cases, 146.

Argued for the respondents—The onus of proving that he had been incapacitated by injury by accident arising out of and in the course of his employment lay on the appellant— Pomfret v. Lancashire and Yorkshire Railway, 1903, 2 K.B. 718. The appellant here had not discharged that onus, for the Sheriff had found that it was impossible to say whether the appellant's condition was due to a new injury on 4th December 1908 or whether it was the natural result of the previous accident. In any case there was nothing to which the appellant could point to as an accident as distinguished from a natural consequence of the condition caused by previous injury— Hawkins v. Powell's Tilbury Steam Coal Company, Limited, 1911, 1 K.B. 988; Boardman v. Scott & Whitworth, 1902, 1 K.B. 43; Coe v. Fife Coal Company, 1909 S. C. 393, 46 S.L.R. 328. The appellant could of course still claim compensation from his former employers— Dempster v. Baird & Company, Limited, 1908 S.C. 722, 45 S.L.R. 432.