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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Rodger and Others v. School Board of Paisley [1911] ScotLR 413 (22 February 1911)
URL: http://www.bailii.org/scot/cases/ScotCS/1911/49SLR0413.html
Cite as: [1911] SLR 413, [1911] ScotLR 413
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SCOTTISH_SLR_Court_of_Session
Page: 413↓
Court of Session Inner House First Division.
v.
Facts:
A school janitor, while in the course of his employment taking a message from the headmaster to another headmaster, fainted in the street owing to the heat of the day, and fell backwards, striking his head on the stone pavement. He eventually died from the effects of the accident.
Held that the injury by accident did not arise out of his employment in the sense of section 1 (1) of the Workmen's Compensation Act 1906.
Mrs Annie Rodger, widow of William Rodger, and Alexander Rodger, Hugh Rodger, and Annie Rodger, children of William Rodger, appellants, claimed compensation under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) from the School Board of the burgh of Paisley, respondents, and being dissatisfied with the determination of the Sheriff-Substitute
Page: 414↓
( Lyell) acting as arbitrator under the Act, appealed by way of stated case. The Case stated—“(1) The deceased William Rodger, late husband of the principal appellant, was, for twenty-two years prior to his death on 24th June 1911, a workman in the employment of the respondents, as janitor at the North Public School, Paisley. (2) Shortly after 11 a.m. on 7th June 1911 the said deceased was sent, in the course of his employment, by the headmaster of the said school, to convey a message on business connected with the school, to the headmaster of Camphill School, Paisley, a distance of a mile and a half. (3) After delivering the said message, the deceased was returning to the North School via Storie Street, Paisley, between 12 noon and 1 p.m., and when opposite No. 14 Storie Street he stopped, and facing the wall of the said house, leaned his hands against it. (4) He then fell backwards, striking his head violently on the stone pavement. (5) The said fall caused injury to the brain, in consequence of which meningitis supervened, and the deceased died on the said 24th June 1911. (6) The deceased was 60 years old when he died, and prior to his injury by the said fall he enjoyed normal good health. (7) The weather in the town of Paisley and in the surrounding district on the said 7th June 1911 was very hot, the temperature recorded at Paisley Observatory being 75·6° at noon, and 76·8° at 2 p.m. (8) The cause of the deceased's fall was either giddiness or faintness brought on by the excessive heat of the day, acting upon a man of 60 years of age in normal health. (9) There was nothing in the nature of the deceased's employment that exposed him to more than the ordinary risk of weather conditions to which any person on the streets of Paisley was exposed between 12 noon and 1 p.m. that day. (10) All persons in the streets of Paisley and the surrounding district, whether in the course of their employment or not, were equally exposed at the time in question to the weather conditions which produced giddiness or faintness in the case of the deceased. In these circumstances I found further, in fact, that the deceased died from injury by accident occurring in the course of his employment, but found in law that the accident did not arise out of the employment in the sense of the statute.”
The question of law for the opinion of the Court was—“Was the Sheriff-Substitute right in holding that the accident did not arise out of the deceased's employment, in the sense of the statute?”
Argued for the appellants—They did not maintain, in view of Robson, Eckford, & Company, Limited v. Blakey, December 23, 1911, 49 S.L.R. 254, that heat apoplexy was an accident in the sense of the Act any more than frostbite— Warner v. Couchman, [1911] 1 KB 351, aff. 28 T.L.R. 58. But nevertheless the injury was “by accident,” for it was the proximate cause of the injury to the deceased that must be regarded, namely, the falling on his head; further, the injury was by accident arising out of the employment. The reasoning in the cases of Wicks v. Dowell & Company, Limited, [1905] 2 KB 225, and Owners of Ship “Swansea Vale” v. Rice, 1911, 27 T.L.R. 440, applied, and they should be followed. The employment contributed to the accident by exposing the workman to one of the ordinary dangers of the street; it therefore arose out of his employment— M'Neice v. Singer Sewing Machine Company, Limited, 1911 S.C. 12, 48 S.L.R. 15, which was followed in Pierce v. Provident Clothing and Supply Company, Limited, [1911] 1 KB 997. As to the meaning of “accident arising out of,” reference was also made to Moore v. Manchester Liners, Limited, [1910] AC 498; Refuge Assurance Company v. Millar, 1912 S.C. 37, 49 S.L.R. 67; Murray v. Denholm, 1911 S.C. 1087, at 1102, 48 S.L.R. 896; Warner v. Couchman ( cit. sup.); Kitchenham v. Owners of s.s. Johannesburg, [1911] AC 417. The Lord President referred to Challis v. London and South-Western Railway Company, [1905] 2 KB 154, and Fitzgerald v. W. G. Clarke & Son, [1908] 2 KB 796.
Argued for the respondents—The injury was not by accident arising out of the employment. To satisfy these words there must be something in the employment which subjected the workman to some greater or more frequent risk than quivis ex populo— Robson, Eckford, & Company, Limited v. Blakey ( cit. sup.); Warner v. Couchman ( cit. sup.). This was fulfilled in Wicks, because his employment took the workman into a dangerous place.
At advising—
Now I take it that there is no question that he had an accident—that is to say, that he had a fall—but the point is whether the accident arose out of and in the course of his employment. I think also there is no question that it arose in the course of his employment. He was discharging a part of his duty. But the point remains, was it an accident arising out of his employment? The Sheriff-Substitute finds two things. He finds that the weather was hot on that day. But it was not any very great heat. And he says—“There was nothing in the nature of the deceased's employment that exposed him to more than the ordinary risk of weather conditions
Page: 415↓
In these circumstances I am of opinion that the accident did not arise out of his employment. There was a case the other day here— Robson, Eckford, & Company, Limited v. Blakey ( supra, p. 81)—which is almost the same as the present, but it was ingeniously distinguished by counsel on the ground that in that case the accident, so to speak, was illness and nothing else. It was the effect of the illness which came upon him. Here it is said that the accident is really not in the faintness but is in the head injury which occurred by his striking the pavement, and I think that that is quite an understandable distinction. But the ground upon which I think it is quite clear that the man's accident did not arise out of his employment is that I do not think that his employment in any way subjected him to the particular class of accident in consequence of which he died.
I need not go through the cases again—we have been through them all very recently. But in one of them I suggested that it is helpful to contrast them by what I may call the interrogative method, and I think that if you employ that interrogative method it comes out very clearly. I contrast this case with the class of case of which the bicycle cases, both here and in England, are examples— M'Neice v. Singer Sewing Machine Company, Limited, 1911 S.C. 12; Pierce v. Provident Clothing and Supply Company, Limited, [1911] 1 KB 997—and also with the hypothetical case I have put more than once in illustration—the case of the sandwichman. The danger of the streets to which the bicyclist and the sandwichman were subjected was the danger of being run over. I may also take another illustration from the judgment of Buckley, L.J., in the case of Fitzgerald v. W. G. Clark & Son, [1908] 2 KB 796, at p. 800; there may be a danger to which a man's employment specially subjects him which may consist not so much in the actual quality of the thing itself but in the constant recurrence of certain conditions—I mean the case that he puts of the railway guard. As he says, all of us travel by railway, and when we do so we are of course as much exposed to the risk of collision and hurt on that particular journey as the railway servant is, but then the railway servant goes every day and all the day, and we do not.
Therefore, putting it interrogatively, if you said “what is the class of injuries to which a railway guard's employment subjects him”? the answer would be, among other things, “a collision.” In the same way with the sandwichman and the bicyclist, to what class of dangers are they subjected? The answer at once is “being run over.” But if you said “to what kind of danger does the janitor's employment (including in that employment having to go messages) expose him?” you might say “being run over in the street,” but you would never say, I think, “the fact that, if he fell down, his head would hit something hard.” He might have had this fainting fit in his own room and fallen against the fender, and he might on the other hand have fallen upon a soft rug in a room and upon some comparatively soft surface in the street.
And this case is entirely distinguished, I think, from the other class of case where the particular situation in which a man is put makes the fall more than usually dangerous, such as the case where the man was standing near the hold of a ship, being obliged to be there by his occupation, and fell down the deep hold and hurt himself. In that case the learned Judges put the illustration of the man being bound to walk, in the course of his employment, along the edge of a precipice. Now there is nothing of that sort here. This man was hurt in going along an ordinary street. It was absolute chance that the paving at that particular place, as it happened, was paving stone which cracked his head, and was not semi-liquid tar macadam which would not have hurt him at all.
Accordingly, applying that method of interrogation, I come without any hesitation here to the conclusion that this accident did not arise out of the man's employment, and accordingly I think the Sheriff-Substitute was quite right in his decision.
Now I agree entirely with all that your Lordship has said. The counsel for the appellant argued, with great ingenuity, that all we have to look at is the immediate cause of the injury to this man, because the law, according to the dictum which is so often cited, does not judge the cause of causes; and accordingly it is said that when it has been ascertained that this man has died in consequence of his head being brought violently into contact with the stone pavement at a time when and in a place where he was engaged in his employment, everything has been proved that is necessary to satisfy the statute.
I think everything on that hypothesis has been proved that is necessary to satisfy the one condition of the statute that a man should be injured while he is in the course of his employment. But then it is necessary to go further in order to answer the other question which the statute proposes,
Page: 416↓
I think it is now well settled that in order to satisfy that condition it must be shown that the injured man suffered in consequence of a risk incidental to his employment—that is to say, a risk beyond what ordinary people incur in the ordinary course of their business, but to which he was specially exposed by the nature of his employment. The illustration your Lordship takes seems to me to be an excellent one, because the extrinsic circumstances are so similar to the present—I mean the case of the man who was injured, in consequence of an epileptic fit, by falling into the hold of a ship. That was held to be an injury by accident arising out of his employment, because his employment made it necessary that he should be stationed at the edge of the hold, and therefore it exposed him to a risk, if he did faint, to which ordinary people are not exposed. It was exactly the case put by Collins, L. J., of a man being stationed, in consequence of his employment, on the edge of a precipice.
The other case cited in the course of the argument is an equally good illustration—the case of a man who was stationed, in consequence of his employment, in such a position as to expose him to a greater risk of being struck by lightning than ordinary people not employed at that place would be exposed to. But there is nothing exceptional in the cause of the injury in the present case at all. It is a risk which attends anyone whose business or pleasure takes him into the street—the risk of being injured if he be attacked by a fainting fit and fall. It is quite clear upon that statement that the faint had nothing to do with his employment, and I think the injury from falling was altogether out of relation to his employment also.
I come to the conclusion, therefore, that this poor man suffered from an accident to which all people are liable, and to which his own particular employment did not specially expose him.
The immediate cause, then, of the personal injury or concussion was the fall and consequent blow. The immediate cause of the fall, and therefore the remote cause of the injury was giddiness or faintness; and the Sheriff-Substitute finds in fact that the immediate cause of the giddiness or faintness, and therefore the still more remote cause of the injury, was the excessive heat of the day, acting on a man of threescore in normal health. He has further found that in these circumstances the accident did not arise out of the man's employment. In this I entirely agree, as I think we are only concerned with the immediate or proximate cause of the personal injury.
We have had a good many cases cited, with the relative dicta of Judges, as to the dangers of the street in special reference to the Workmen's Compensation Act 1906. I refer to one of these, though it is in contrast to the present— Wicks v. Dowell & Company, Limited, [1905] 2 KB 225. The conclusion there come to was that the accident was occasioned by a fall—the fall by a fit. Dissociate the proximate cause, the fall, from the remoter cause, the fit, and the question remained, Did the fall and its consequent accident arise out of the employment? That was affirmatively answered, because the employment required the workman to work on the edge of the open hatchway of a vessel's hold. The risk of such a fall, whatever might be the cause of the fall, was a danger peculiarly incident to the man's employment. But a danger peculiarly incident to a workman's employment is in a different position from one which has no necessary connection with his employment, but is common to all or many persons irrespective of employment. Hence the value of the distinction between two other cases— Andrew v. Failsworth Industrial Society, Limited, [1904] 2 KB 32, where a man working on a high and exposed scaffold, and Kelly v. Kerry County Council, 42 I.L.T. 23, where a man working on the high road, were each struck by lightning. To be struck by lightning is a risk common to all, and independent of employment, yet the circumstances of a particular employment might make the risk not the general risk, but a risk sufficiently exceptional to justify its being held that the accident from such risk was an accident arising out of the employment. In Andrew's case, therefore, the accident was held to have arisen out of the employment; in Kelly's case not.
If, then, in the present case the fall is regarded as the proximate cause of the accident, it cannot, I think, be said that the fall of a pedestrian on the street is more incidental to one class of employment than to another, or more likely to occur to a workman than to his employer or any other passer-by.
I refer to the passage in Lord Salvesen's opinion in Murray v. Denholm & Company, 1911 S.C. at p. 1102, where he cites from the judgment in Fitzgerald's case, [1908] 2 KB 796. I accept it, therefore, that an accident to arise “out of” the employment, in the sense of the Act, must be an accident reasonably incident to the employment.
Page: 417↓
The Court answered the question in the affirmative.
Counsel for the Appellants— Sandeman, K.C.— MacRobert. Agents— Fyfe, Ireland, & Company, W.S.
Counsel for the Respondents— Crabb Watt, K.C.— Moncrieff. Agents— Simpson & Marwick, W.S.