Supreme Court of Canada
Workmen's Compensation Board v. Theed, [1940] S.C.R.
553
Date: 1940-06-29
The Workmen's
Compensation Board Appellant;
and
Helen Elizabeth
Theed Respondent.
1940: May 8; 1940: June 29.
Present: Crocket, Davis,
Kerwin, Hudson and Taschereau JJ.
ON APPEAL FROM THE SUPREME COURT OF NEW
BRUNSWICK APPEAL DIVISION
Workmen's Compensation Act—New Brunswick
statute of 1932, c. 36, section 7—Injury sustained by a girl stenographer
operating embossing machine—Whether an "accident" within the meaning
of the Act.
The respondent was employed as a stenographer
in the credit department of Irving Oil Company, Limited, at Saint John, N.B.,
from March, 1938, until the end of March, 1939. In December, 1938, in the
course of her employment, she was asked to operate a new hand-embossing machine
for making addressograph plates. The first morning she operated it she
complained to the office manager that the machine was too heavy for a girl to
operate, and that the first night she noticed a sore spot in her back,
notwithstanding which she operated the machine again the next day. About two
weeks or so later, she was again called upon to operate the machine and did so
for two days or so. In the meantime, while employed about other office work,
the sore spot continued. In consequence of her condition, she consulted several
doctors and eventually had to undergo an operation. Section 7 of the New
Brunswick Workmen's Compensation Act, ch. 36 of 1932, reads as follows:
"When personal injury or death is caused to a workman by accident, arising
out of and in the course of his employment in any industry within the scope of
this part, compensation shall be paid to such workman or his dependents, as the
case may be, as hereinafter provided * * *." On June 5th, 1939, the respondent
applied to the Workmen's Compensation Board for compensation. The Board
disallowed the claim on the ground that there was not sufficient evidence that
the injury claimed for had been caused by an accident. On the submission of a
further statement, the Board held an investigation with the result that the
Board, upon a reconsideration of the entire case, made a new ruling and found:
"1. That the personal injury of which the appellant (now respondent)
complains arose out of and in the course of her operating their embossing
machine in her employment within the scope of Part I of the said Act (The Workmen's
Compensation Act, 1933, ch. 36 and amendments); and 2. That the said injury
was not caused by accident." The respondent having obtained permission to
appeal to the Appeal Division of the Supreme Court of New Brunswick, that Court
allowed the appeal and held that the injury caused to the respondent was caused
by accident within the meaning of the Workmen's Compensation Act.
Held, affirming
the judgment of the appellate court (14 M.P.R.
499), that the personal injury, which the respondent suffered in the
course of her operating the machine, was an accidental injury within the
meaning of the statute.
[Page 554]
APPEAL from the judgment of the Appeal
Division of the Supreme Court of New Brunswick,
by special leave to appeal granted by that Court, reversing the decision of the
Workmen's Compensation Board, which had disallowed the respondent's claim for
compensation under the Workmen's Compensation Act of New Brunswick.
The material facts of the case and the
questions at issue are stated in the above head-note and in the judgments now
reported.
J.J. F. Winslow K.C. for the appellant.
D. King Hazen K.C. for the respondent.
Crocket J.—The respondent was employed as a stenographer in general office
work in the credit department of the head office of the Irving Oil Co., Ltd.,
at Saint John, N.B., from March, 1938, until the end of March, 1939. In
December, 1938, in the course of her employment she was asked to operate a new
hand-embossing machine for making addressograph plates. The machine, which
worked stiffly at first, was operated by means of a lever, which required
considerable exertion to make an impression. It was operated by different
employees in the office as the occasion for making up new addressograph plates
arose, and the credit manager admitted that he had complaints from other lady
operators besides Miss Theed that it tired their muscles to operate it,
explaining that its operation required the use of muscles not ordinarily used
and that it would be liable to cause soreness in those muscles until they
became accustomed to it. Miss Theed herself testified that the first morning
she operated it she complained to the office manager that the machine was too heavy
for a girl to work, and that the first night she noticed a sore spot in her
back, notwithstanding which she operated the machine again the next day. It was
about two weeks before she was called upon to operate it again and she did so
for two days or so. In the meantime while employed about other office work the
sore spot kept about the same and she consulted an osteopath, who told her she
had twisted a rib and gave her about eleven treatments. Her condition showing
no improvement, she obtained leave of absence and went to Montreal where she
consulted Dr.
[Page 555]
Shannon, who told her she had torn some
ligaments and would have to have operative treatment. Returning to Saint John,
Dr. George F. Skinner operated on her on July 25th, 1939, and, having in the
meantime secured a new position as secretary at the Rothesay Collegiate School,
she was able to take up her work there on September 1st. Dr. Skinner, when
asked to explain the nature of the injury, for which he had operated, described
it as one of those soft tissue injuries that is really indefinable, and which,
for lack of a better term, would come under the group of sprains and strains.
There was, he said, apparently constant tenderness and constant pain over the
spine at the eighth thoracic vertebra. Dr. Shannon, Dr. Skinner said, had
previously demonstrated this numerous times and found her condition just as Dr.
Skinner described it with a tenderness over this point on movement. The
operation disclosed nothing more than what one might call thickening of the
fibrous tissue of the region; that was again one of the rather indefinite
undefinable things that they had to face in sprains and strains. Right over the
spinous process the tissues were so thickened that he had a sensation of
cutting through a definite bursa. Injury like that he described as tears in the
ligaments. Dr. Shannon had instructed him to operate. Dr. McKay, who had been
called in consultation and assisted at the operation, agreed that the only way
they could define the injury was that the fibrous ligamentous attachments to
that particular bone had been strained and in healing they had healed so as to
give abnormal tensions. In the operation all the muscles and ligamentous
attachments were freed from that part of the bone and the spinous process
itself was removed.
On June 5th, 1939, the respondent applied to the
Workmen's Compensation Board for compensation. The Board disallowed the claim
on the ground that there was not sufficient evidence that the injury claimed
for had been caused by accident. On the submission of a further statement the
Board held an investigation upon which the claimant, Dr. Skinner and other
witnesses were examined and cross-examined by counsel with the result that the
[Page 556]
Board, upon a reconsideration of the entire
case, altered its prior ruling and found
1. That the personal injury of which the
appellant complains arose out of and in the course of her operating the
embossing machine in her employment within the scope of Part I of the said Act (The
Workmen's Compensation Act, 1933, ch. 36 and amendments).
2. That the said injury was not caused by
accident.
The respondent having obtained an order from a
judge of the Supreme Court permitting her to appeal to the Appeal Division of
the Supreme Court of New Brunswick on the question of law involved, that court
unanimously allowed her appeal and on the application of the Board granted
special leave to appeal to this court, Baxter C.J. dissenting as to the
allowance of special leave.
Section 7 of the New Brunswick Workmen's
Compensation Act reads as follows:
When personal injury or death is caused to
a workman by accident, arising out of and in the course of his employment in
any industry within the scope of this Part, compensation shall be paid to such
workman or his dependents, as the case may be, as hereinafter provided, unless
such accident was, in the opinion of the Board, intentionally caused by such
workman, or was wholly or principally due to intoxication or serious and wilful
misconduct on the part of the workman, or to a fortuitous event unconnected
with the industry in which the workman was employed.
It will be seen from what I have already said
that the only issue upon this appeal is as to whether the personal injury,
which the applicant admittedly suffered in the course of her operating the
machine, and which the Board expressly found arose out of and in the
course of her doing so in her employment within the scope of Part I of that
Act, was "a personal injury caused by accident within the meaning of the
above section." In my opinion we are bound to hold that it was. That that
injury consisted of the straining of the muscles of; her back and the tearing
of the ligamentous attachments to the eighth thoracic vertebra, causing pain
and a distinct sore spot in that region, admits of no doubt. This was
demonstrated beyond cavil by the operation which became necessary for its
relief.
Decisions of the House of Lords in a long line
of cases from 1903 to 1935, it seems to me, are conclusive that such an injury
as that described is an accident within the meaning of the provisions of the
English Workmen's Compensation Act and of the corresponding New
Brunswick Act
[Page 557]
imposing liability for "personal injury by
accident arising out of and in the course of" the employment of the
injured person.
In Fenton v. Thorley, it was held that the word
"accident" in this enactment is used in the popular and ordinary
sense, and means a mishap or untoward event not expected or designed, and that
a workman who in the turning of the wheel of a machine during the course of his
employment over-exerted himself and thereby sustained an internal rupture,
suffered an injury by accident within the meaning of the statute. Lord
Macnaghten in delivering the leading judgment in that case referred to a
decision of the Scottish Court of Session in Stewart v. Wilsons &
Clyde Coal Co. Ltd.,
in which he said he agreed entirely. That was a case where a miner strained his
back in replacing a derailed coal hutch and in which all the learned judges of the
Court of Sessions held that it was an accident in the sense of the Act.
What the miner did in replacing the hutch
(Lord Macnaghten said) he certainly did deliberately and in the ordinary course
of his work. There was nothing haphazard about it.
Lord M'Laren of the Scottish Court said he
considered that
if a workman in the reasonable performance
of his duties sustains a physiological injury as the result of the work he is
engaged in * * * this is accidental injury in the sense of the statute.
Lord Kinnear observed that the injury was not
intentional and that it was unforeseen.
It arose (he said) from some causes which are
not definitely ascertained except that the applicant was lifting hutches which
were too heavy for him. If (he added) such an occurrence as this cannot be
described in ordinary language as an accident, I do not know how otherwise to
describe it.
Lord Macnaghten observed that Fenton was a man
of ordinary health and strength; that there was no evidence of any slip or
wrench or sudden jerk; and that it might be taken that the injury occurred
while the man was engaged in his ordinary work and in doing or trying to do the
very thing which he meant to accomplish. He also said that the Court of Appeal
in sustaining the decision of the arbitrator that there was no injury by
accident within the meaning of the Act had followed an earlier decision of that
court in Hensey v. White,
(which Lord
[Page 558]
Macnaghten said was in its circumstances not
distinguishable from the case he was then considering) that there was no
accident because there was "an entire lack of the fortuitous
element." This, he pointed out, was not necessary to constitute an
accident, and he added:
If a man in lifting a weight or trying to move
something not easily moved, were to strain a muscle or rick his back or rupture
himself, the mishap in ordinary parlance would be described as an accident.
Lords Shand, Davey, Robertson and Lindley all
agreed that the decision of the County Court Judge and of the Court of Appeal
refusing compensation for the internal rupture should be reversed, Lords Shand
and Davey concurring in the reasons of Lord Macnaghten and Lords Robertson and
Lindley delivering judgments of the same purport. The latter, referring to the
Scottish decision in Stewart v. Wilsons & Clyde Coal Co., said that the
interpretation put upon the Act in Scotland in that case
is to be preferred to the narrower
construction occasionally adopted in this country.
Fenton v. Thorley
has ever since been
treated as the leading case upon the meaning of the word "accident,"
as it appears in the Workmen's Compensation Act. The principles there
enunciated have ever since been consistently recognized by the Law Lords of the
House. They subsequently held that infection developing from the entry of a
bacillus into the eye of a workman from wool he was sorting was an injury by
accident, as in Brintons Ltd. v. Turvey; and that a strain
suffered by a workman through exertion in the course of his employment is
itself an accident, as in Clover, Clayton & Co. v. Hughes.
In Glasgow Coal Co. v. Welsh, a miner was bailing
out water from the bottom of the pit, which necessitated his standing up to his
chest in water for eight hours with the result that thereafter and for two or
three days he felt great stiffness and cold and pain in his joints and
contracted sub-acute rheumatism. The arbitrator in this case found that the
rheumatism was caused by the extreme and exceptional exposure to cold and damp.
Viscount Haldane and Lords Kinnear, Shaw of Dunfermlin, Parmoor and Wrenbury
all held that it was a case of injury
[Page 559]
by accident. The first two Law Lords named
distinctly held that the judgment in Fenton v. Thorley was conclusive.
Innes or Grant v.
Kynoch
was the case of a workman's death from blood-poisoning, caused by his becoming
infected through an abrasion on his leg by noxious bacilli contained in
bone-dust which the deceased handled in the course of his employment. It did
not appear when or how he received the abrasion, and it was impossible to say
with certainty when the infection occurred. Lord Birkenhead, L.C., and Lords
Buckmaster, Atkinson, Parmoor and Wrenbury all held that the fortuitous
alighting of the bacilli upon the abraded spot constituted an accident within
the Act; that there was evidence upon which the arbitrator was entitled to find
that the injury arose out of and in the course of the deceased's employment;
and that the provisions of the Act as to fixing the date of the accident are
satisfied, if, having regard to the nature of the particular injury alleged,
the date of the occurrence of the accident is reasonably fixed so as to connect
the injury with the accident.
In Burrell v. Selvage, a girl worked for the
respondents at a lathe, finishing shell adaptors, and in the course of that
work constantly sustained cuts and scratches on her hands. In March, 1918, she
showed symptoms of blood-poisoning from the pus formed in gatherings caused by
the cuts. She continued to work until April 27th, during which time further
cuts and scratches were caused. By that time the poisoning had so got into her
system that she had to stop work and became totally incapacitated from
arthritis. The arbitrator found that the last cut of April 27th was an
accident, and that the incapacity thus resulted from injury by accident arising
out of and in the course of the employment. The Court of Appeal affirmed his
decision and the employers appealed to the House of Lords. Lords Buckmaster,
Sumner, Parmoor, Wrenbury and Carson all held that, although there was no
evidence to support the finding that the incapacity resulted from the wound on
April 27th, there was conclusive evidence that it resulted from the
accumulative effect of the series
[Page 560]
of accidents met with at her work, and that it
was impossible to hold that because the incapacity was caused, not from a
particular accident, but from a series of accidents, that that fact prevented
the applicant from recovering compensation. In his reasons Lord Buckmaster
said:
In the present case there is no dispute
that the disease from which the respondent suffered, is a disease which
distinctly arose out of the injuries that she received while in the course of
her employment, and it cannot be disputed that her cut and abrased fingers were
on each occasion what would be called an accident within the meaning of the
statute. The only question, therefore, for consideration is whether, when the
disease is due, not to one specific and definite accident, but to a series of
accidents, though its actual influence on the resulting illness cannot be
precisely fixed, the workman is disentitled to the benefit of the statute.
My Lords, I cannot find any words in the
statute which permit of such a construction. In the present case personal
injury was suffered, it was suffered by accident, and the accident is no less
accidental because it occurred on a series of occasions instead of on one; it
follows that the claim to compensation was properly established.
I shall mention only one other of the House of
Lords decisions, that of Walker v. Bairds. In this case the
workman, who was employed as an underground fireman in a colliery, was cleaning
out a sump into which water had collected and for which purpose it was usually
necessary to stand in cold water about waist-deep. On coming out on one
occasion it was noticed that he was shivering; he contracted a chill, which
within a short time developed into broncho-pneumonia from which he died. The
arbitrator drew the inference that the broncho-pneumonia was caused by a chill,
which he contracted through exposure to cold and water but found that in law
the death of the workman was not caused by accident arising out of and in the
course of his employment. On these facts, as set forth in a stated case to the
Second Division of the Court of Session, that court held that, since it was
established that the chill, which caused the disease, had arisen out of and in
the course of his employment, the workman's death from the disease was the
result of an injury by accident within the meaning of the Workmen's
Compensation Act, 1925. On appeal to the House of Lords, Lords Tomlin,
Thankerton, Macmillan, Wright and Alness held that the Court of Session in
Scotland was right in this conclusion. Lord Tomlin after reviewing the previous
decisions from Fenton v. Thorley
in 1903 to Partridge
[Page 561]
Jones and John Paton Ltd. v. James,
said that these decisions inescapably led to the conclusion that upon the
arbitrator's findings of fact the Court of Session was bound to hold that
Walker's death was caused by personal injury by accident in the sense of the Workmen's
Compensation Act.
The Compensation Board in the present case gave
no reasons for its decision that the applicant's injury was not caused by
accident, though it did specifically find that the injury "arose out of
and in the course of" her operating the machine within the scope of
Part I of the New Brunswick Workmen's Compensation Act. The learned
counsel for the Board in his argument before us suggested that the decision
proceeded on the ground that the injury was one which gradually developed
during the period in which she was required to operate the machine, and was for
that reason not the result of any one particular strain or any strain which it
was possible to identify as having occurred on any particular day. If this were
the basis of the Board's decision that the injury was not caused by accident,
then I think with all respect for the reasons I have already indicated the
Board misdirected itself as to the law.
It is true that there had been some decisions in
the Court of Appeal since Fenton v. Thorley to the effect that
unless the injury be one of such a nature that its occurrence can be proved to
have occurred at some definite time, it cannot properly be held to be an
accident within the meaning of the statute in question. The learned counsel for
the Board relied especially upon the decisions of the Appeal Court in Steel v.
Camell, Laird & Co.
and Walker v. Hockney Bros.,
but an examination of these cases shows that neither of them bears any analogy
to the case now before us.
The Steel case (3) was the case of a
caulker, who in the course of his employment had to use white and red lead
which were smeared by him upon rope-yarn and worked in with the hands. He
gradually accumulated lead in his system, with the result that he suffered from
lead-poisoning, which produced partial paralysis and incapacity for work.
Although the arbitrator found that personal injury
[Page 562]
by accident arising out of and in the course of
the employment had been caused to the workman, Collins, M.R., in his reasons
said he found that the injury to the applicant was lead-poisoning, which was
brought about through the applicant being saturated with lead in consequence of
his being in continuous contact with it and that in any case the result must
have come about through long exposure to contact with the lead and gradually,
not suddenly. He also said that it was not possible to indicate any precise
time at which the mischief arose; and Cozens-Hardy, L.J., said the statute negatives
the idea that it applied to a case like the one then under consideration, where
the only suggestion was that the injury was due to some or all of a succession
of accidents, and that injury by disease alone, not accompanied by an accident
was expressly excluded, as pointed out by Lord Macnaghten in Fenton v. Thorley. In so far as the
possibility of indicating the precise time, at which the mischief arose, is
concerned, the dicta relied upon, I think, must now be taken as subject to the
qualification indicated in the decision of the House of Lords in Burrell v.
Selvage.
In Walker v. Hockney the workman gradually
acquired paralysis of his right leg through the strain of riding a heavy
carrier tricycle for his employers during a period of about six years.
As to the dictum of Lord Birkenhead, L.C., in
his speech in the House of Lords in Innes v. Kynoch, upon which the
Board's counsel also relied, regarding the necessity of the accident taking
place "at some one particular time," if the whole context, in which
this statement occurs, is read, it will be found that His Lordship's view was
that, although in order to constitute an injury by accident there must be some
particular occurrence happening at some particular time, what that particular
time was was "immaterial so long as it reasonably appeared that it was in
the course of the employment," which is precisely the view adopted by the
House of Lords in the Burrell case (1) of 1921.
Whatever may be said of the judgment of the
Appeal Court in Ormond v. Holmes,
no support whatever can
[Page 563]
be found either in the reasons of Slesser, L.J.
or Romer, L.J. or in those of Luxmore, J., for the proposition that a straining
of any muscle or other organ of the human body cannot properly be held to
constitute an accident within the meaning of the statute in any case where it
appears that the incapacity for which compensation is claimed may have
developed therefrom gradually, and not suddenly. Indeed as I read the several
judgments their purport is quite to the contrary. The learned justices founded
themselves entirely upon the specific findings of the arbitrator and in order
that these may be clearly understood it should be explained that Ormond had
been employed by the Holmes Company for a number of years as a blacksmith
striker and had for a long time prior to 1935 been suffering from arterio
sclerosis and very high blood pressure. While rising from his bed at home on
the morning of September 27th, 1935, he had an attack of hemiplegia, commonly
called a stroke, and was compelled to rest until October 9th, 1935, when he
returned to his usual work against the advice of his doctor. On December 20th
he started work at 7 o'clock, his usual time, but at 7.30 was observed to be
looking ill, he was dragging his right foot and his mouth was drawn up on the
right side. He also felt his right arm gradually losing power during the
morning. Between 10 and 10.30 a.m., he collapsed from a second and severer
stroke. Both attacks were due to thrombosis or clotting. In claiming compensation
he alleged that his incapacity was caused by an accident which happened on
December 20th, arising out of and in the course of his employment. The
arbitrator found that the work upon which Ormond was actually engaged on
December 20th neither caused nor contributed to nor accelerated the second
stroke and that the thrombosis was coming on that morning and would have
inevitably resulted in hemiplegia even if he had not done any work that day,
but that all the work he had been doing since October 9th up to the time he
began to work on December 20th, and indeed all muscular effort or exertion up
to that time accelerated the second attack. Having stated that he could not
associate the second attack with any particular work either on December 20th or
on any particular day before then, and that in the circumstances he regarded
the stroke as the final stage of a long standing disease accelerated by the
general wear and tear
[Page 564]
of previous work and all other strenuous
exercises up to but not including any work done on that morning, he held that
the workman had failed to prove an injury from any accident within the meaning
of the Act.
The decision of the Appeal Court proceeded
entirely on the ground that the second stroke on December 20th, which was the
alleged injury and accident, was solely induced by the disease
(arterio-sclerosis and high blood pressure) and was not caused or contributed
to by anything Ormond did on that morning, and that, although the wear and tear
of his usual work and all other strenuous exertions between October 9th and
that morning may have accelerated this stroke, it was not possible to point to
any particular strain or occurrence in the performance of his work during this
period of more than two months, to which the change in his condition could be
attributed. The case was therefore held not to fall under the House of Lords
decisions in Fenton v. Thorley,
Brintons Ltd. v. Turvey,
Clover, Clayton v. Hughes,
Innes v. Kynoch,
or any of the other House of Lords decisions I have mentioned, the principle
recognized and applied in all of which, as Romer, L.J., pointed out, was
precisely the same. In the view of all three of the Appeal Justices, the case
was rather one of an injury resulting from gradual wear and tear as in Walker
v. Hockney Bros.
and Steel v. Cammel, Laird & Co.
and other similar cases. Both Slesser, L.J. and Luxmoore, J. particularly
referred to the judgment of the Lord Justice-Clerk (Aitchison) in Miller v.
Carntyne Steel Castings Co. Ltd.
in the Scottish Court of Session as illustrating the distinction between a particular
cause limited in point of time and a general cause extending
throughout a period. "When a workman," said the Lord Justice-Clerk,
collapses under a particular strain
it may be and in many cases probably is the climax of a general strain
to which he has been subjected throughout many years of employment and without
which no collapse would have occurred. Again, when a workman becomes
incapacitated without any definite physiological injury or alteration of phase
in the disease from which he suffers * * * it may, none the less, be a
physiological injury, although it may not be medically possible to isolate and
define it.
[Page 565]
There is one other passage which I think applies
particularly to the present case I would like to quote from the reasons of
Romer, L.J. It is as follows:
But in the case of infectious diseases it is
impossible as a rule to assert that there was any particular occasion on which
the bacillus got introduced into the system. If it can be proved that an
infectious disease was contracted at a particular time during the employment,
even though the exact date cannot be specified, then on the principle of Brintons,
Ltd. v. Turvey, the
contracting of the disease may be an accident within the meaning of the Workmen's
Compensation Act (see Grant or Innes v. Kynoch).
Perhaps I should have mentioned the decision of
the Court of Appeal in McFarlane v. Hutton in 1926, where it was held that
If it appears that the work being done has
probably caused an internal strain on the heart or the system generally,
resulting in a physiological injury, such an injury is one resulting from an
accident within the meaning of the Workmen's Compensation Act.
I can find nothing in any of the judgments in the
very recent case of Fife Coal Co. Ltd. v. Young, in the House of Lords, regarding which
the respondent's counsel filed a special memorandum, that in any way detracts
from the authority of its previous decisions in Brintons Ltd. v. Turvey,
Innes or Grant v. Kynoch, Burrell v. Selvage or Walker v. Bairds, or lends any support to the contention
that compensation must be refused unless it is proved that the incapacity
resulted, either from a particular strain, or the strain the applicant
sustained on a particular day. The doctrine as to the necessity of dating the
accident as having occurred on a particular day seems to have been founded on
the provisions of the British Act regarding notice of the accident. No question
as to the sufficiency of the notice arises in this case, as the findings of the
Board on its original consideration and reconsideration of the respondent's
application plainly show.
Where it is found that such an injury as Miss
Theed sustained arose out of and in the course of her employment, as the
Compensation Board has itself specifically found, and that injury is a
physiological injury, as was incontrovertibly demonstrated by the operation
which it necessitated, the injury itself constitutes an accident in
[Page 566]
the sense of a mishap or untoward event not
expected or designed, s. 7 of the New Brunswick Act makes the payment of
compensation compulsory, unless the Board is of the opinion that such accident
was wholly or principally due to intoxication or serious and wilful misconduct
on the part of the applicant or to a fortuitous event unconnected with the
industry in which he or she was employed, of which there is of course no
suggestion in the present case. Whether such an injury or mishap results from a
particular strain, as of a single muscle or group of muscles, or from the
culmination of a general straining of the muscular and ligamentous attachments
of the particular joint affected, makes no difference, when the injury is
identified, as it has been in this case, as a definite physiological one
arising out of and in the course of the applicant's employment. The mishap of
course necessarily implies a particular occurrence at some particular time,
but, as Lord Birkenhead put it in the Kynoch case, what that particular time was is immaterial
so long as it reasonably appears that it was in the course of employment.
The evidence in the case before us clearly
proves that Miss Theed operated the addressograph machine only on two
occasions, first, for a period of two or three days about the middle of
December, and again, two or three weeks later, for a second period of two or
three days, and that she felt the symptoms of her injury the night after she
first operated the machine.
The appeal should be dismissed with costs,
against which costs the appellant shall be entitled on taxation to credit for
any moneys which it may have paid to the respondent under the terms of the
order granting special leave to appeal.
Davis J.—The point in this case is, that the young woman sustained a
definite physiological injury as the direct result of the work in which she was
engaged; that is an accidental injury in the sense of the statute. The case
comes clearly within the governing principle in the recent judgment of the
House of Lords in Fife Coal Co. Ltd. v. Young.
[Page 567]
We are not concerned in this appeal with the
difficult questions which arise where there is a progressive disease which has
not been expressly made, by statute or regulation, an industrial disease. In
the numerous authorities under the English Workmen's Compensation Act the
judges have always been careful to abstain from lending colour to the
suggestion (except in the case of certain industrial diseases which have been
expressly provided for) that a mere disease which one cannot say with any
precision was contracted at any particular time or at any particular place, was
an accident which entitled a workman to compensation. Lord Atkin said in the Fife
Coal case at p.
489:
Whether to constitute an accident each
employment bacillus or flight of bacilli must have its own day, or whether the
gradual effect of a succession of them in poisoning the system can. be said to
be injury by accident is the question reserved in this decision.
On the established facts in the case before us
there was a definite physiological injury that can be traced without any doubt
to the young woman operating by hand, in the ordinary performance of her work,
a machine that was too hard for her to work. The particular days on which she
worked the machine were very few and were proved with precision and the
physical injuries suffered are clearly established to be the direct result of
her working the machine. I can see no difficulty on the authorities in
regarding this as an accidental injury within the meaning of the statute.
I agree that the appeal must be dismissed.
The judgment of Kerwin and Taschereau JJ. was
delivered by
Kerwin J.—The respondent, Helen Elizabeth Theed, was a stenographer
employed in general office work at Saint John, New Brunswick. While operating
an addresso-graph or embossing machine in the course of her employment she tore
certain ligaments in her back. A claim for compensation under The Workmen's
Compensation Act of New Brunswick (chapter 26 of the Statutes of 1932 and
amendments), made to the Workmen's Compensation Board, was disallowed, the
Board's certificate stating that there was not sufficient evidence of injury by
accident.
[Page 568]
Upon the respondent's application and in
pursuance of certain provisions of the Act, the Board reconsidered its ruling
and after the taking of oral evidence issued the following amended ruling:—
1. That the personal injury of which the
applicant complains arose out of and in the course of her operating an
embossing machine in an employment within the scope of Part 1 of the said Act.
2. That the said injury was not caused fey
accident.
The respondent obtained leave to appeal on a
question of law, from the ruling, to the Appeal Division of the Supreme Court
of New Brunswick, and the appeal was allowed. By special leave of that Court,
the Board now appeals.
The question of law to be determined is whether
the injury caused to the respondent was caused by accident within the meaning
of the Act, and the determination of that question depends upon the proper
construction of section 7, the relevant part of which is as follows:—
7. When personal injury or death is caused
to a workman by accident arising out of and in the course of his employment in
any industry within the scope of this Part, compensation shall be paid to such
workman or his dependents, as the case may be, as hereinafter provided, unless
such accident was, in the opinion of the Board, intentionally caused by such
workman, or was wholly or principally due to intoxication of serious and wilful
misconduct on the part of the workman, or to a fortuitous event unconnected
with the industry in which the workman was employed.
In view of the reliance placed by the appellant
upon certain decisions in England, there should also be noted the provisions of
section 81. By virtue of the first subsection, presuming the necessary
conditions were fulfilled, if the respondent's disability were a disease which
had been declared by regulation of the Board to be an industrial disease, she
would be entitled to compensation "as if the disease was a personal injury
by accident and the disablement were the happening of the accident." Her
disability has not been included in the list of industrial diseases, but by
subsection 2:—
2. Nothing in this section shall affect the
right of a workman to compensation in respect of a disease to which this
section does not apply, if the disease is the result of an injury in respect of
which he is entitled to compensation under this Fart.
[Page 569]
In the present ease the respondent's disability
is not a disease. Before the Board, Dr. Skinner testified as follows:—
Q. Would you explain to us just what the
nature of the injury or trouble was?
A. Miss Theed had one of those soft tissue
injuries that is really undefinable. For a lack of a better term, she would
come under the group of sprains and strains. There was apparently constant
tenderness and constant pain over the spine at the eighth thoracic vertebra.
Dr. Shannon had previously demonstrated this numerous times and I found her
condition just as he described it with the tenderness over this point on
movement.
Q. Which side of the spine was this on?
A. Over the tip of the transverse process:
both sides of the spine: ligaments and muscles. The maximum pain was right in
the middle line. On operation there was nothing more than what one might call
thickening of the fibrous tissue of the region: that is again one of the rather
indefinite, undefinable things that we have to face in sprains and strains.
Right over the spinous process the tissues were so thickened that one had a
sensation of cutting through a definite bursa. Injury like this is described as
tears in the ligaments. Dr. Shannon really instructed me to operate. Dr. McKay
was in consultation and it was the sort of thing that one hesitates to plunge
in on until everything has been done. The only way we could define it to
ourselves before that was that the fibrous ligamentous attachments to that
particular bone had been strained and in healing they had healed so as to give
abnormal tensions, so with the idea of releasing those tensions we went in. We
freed all the muscle and ligamentous attachments from that part of the bone and
removed the spinous process itself. I am more than surprised at the agreeable
result we got.
Q. Would you say the condition you found
there, by your diagnosis and operation, could only result from injury?
A. Yes.
Q. Would you say that constant heavy work
would cause it?
A. I do not think constant smooth work
would cause that condition. I think there has got to be a stimulus to muscle
spasm and I think it is a question of constant jolts, constant irritation of
that nature, to keep the muscle in spasm so that one muscle is pulling on
another.
* *
*
Q. In your opinion, would you say that any
one jolt would be the one that would cause it or the continuous jolting?
A. I cannot answer that question.
Q. What would be your opinion?
A. In operating a machine like that to the
casual observer every operation is the same as every other operation and yet
there are muscle actions in those operations that we cannot define and if she
has thrown herself into a peculiarly tense position by the previous operation,
she has made her muscles susceptible to injury.
Q. Would you say, from Miss Theed's
evidence, that this happened at any one strike of that lever or continuous
operation of the lever?
A. I think it is the continuous operation.
The respondent's disability being an injury,
section 81 of the Act is really not relevant except to be borne in mind in
considering the argument of the appellant.
[Page 570]
The determination of the Board of questions of
fact is, of course, final and reading its certificate in the light of all the
evidence, I agree that it must be taken that the Board has found that the
injury was not caused on any particular occasion on which the respondent used
the machine. This being so, counsel for the Board argued that respondent's
disability having gradually developed over a period of time, there was no
injury caused by accident. Numerous cases decided in England under the various
Workmen's Compensation Acts there in force from time to time were cited. I do
not propose to mention all of these because it must be borne in mind that the
English Act of 1897 did not mention diseases and that the judgments in many
cases decided under that Act would have to be carefuly considered. It was not
until the Act of 1906 that provisions similar to section 81 of the New
Brunswick Act were enacted.
The outstanding pronouncement as to the meaning
of the word "accident" in the English Act of 1897 is the speech of
Lord Macnaghten in Fenton v. Thorley & Co., where he states that
it is "an unlooked for mishap or untoward event which is not expected or
designed." That decision was subsequent to the decision in the Scotch case
of Stewart v. Wilson & Clyde Coal Co., where Lord M'Laren
stated:—
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 when there is no derangement of
the machinery or plant, or of the organization of labour, and when 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 ...
* *
*
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 put the matter thus:—
It (the injury) 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,
[Page 571]
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.
Both judges were quoted with approval by Lord
Macnaghten in Fentoris case.
Now in neither of these cases was there any
question of disease but Clover, Clayton & Co. Ltd. v. Hughes, decided under the Act
of 1906, was a disease case. Lord Loreburn there refers to the fact that all
the Lords who took part in the decision in Fenton v. Thorley (1)
agreed in substance with Lord Macnaghten's definition of "accident"
and Lord Macnaghten himself points out (at p. 248):—
There (in Fentoris case) (1) the
Court of Appeal had held that if a man meets with a mishap in doing the very
thing he means to do, the occurrence cannot be called an accident. There must
be, it was said, an accident and an injury: You are not to confuse the injury
with the accident. Your Lordships' judgment, however, swept away these niceties
of subtle disquisition and the endless perplexities of causation. It was held
that "injury by accident" meant nothing more than "accidental
injury" or "accident" as the word is popularly used.
There are subsequent decisions in the Court of
Appeal, in cases where disease was involved, holding that injury by accident
cannot be established unless the applicant can indicate the time, date,
circumstances and place in which the accident occurred which occasioned the
disease (other than an industrial disease) but the House of Lords states the
rule to be that even in disease cases the injury by accident will be
established if having regard to the particular injury alleged, the date and
circumstances of the accident are reasonably fixed so as to connect the injury
with the accident.
This appears from their Lordships' decisions in Innis
or Grant v. Kynoch
and Burrell v. Selvage.
During the course of his speech in the first case, Lord Birkenhead states at
page 772:—
It is no doubt the fact that in Brinton's
case a
particular time was found as being that at which the contact had occurred. But
all that is material is that the infection should have been the result of
contact at some one particular time and that this one particular time should
have been during the course of the employment. Some expressions, such as those
referred to in the judgment of the Second Division, have
[Page 572]
been from time to time used, but none of
them are binding upon this House; and indeed when these various expressions are
examined in connection with one another they appear to me to come to no more
than this, that it must be established that the disease is due to some
particular occurrence, otherwise it cannot be the result of accident. That it
should be some particular occurrence happening at some particular time is
essential, otherwise it is not in the nature of an accident. What that
particular time was is immaterial so long as it reasonably appears that it was
in the course of the employment.
In the second case, the circumstances were that
a girl in the course of her work continually sustained cuts and scratches on
her hands. In March, 1918, she showed symptoms of blood poisoning from the pus
formed in gatherings caused by the cuts. She continued to work until April
27th, during which time further cuts and scratches were caused. By that time
the poisoning had so got into her system that she had to stop work and became
totally incapacitated from arthritis. Lord Buck-master, speaking for the
majority, if not all, of the peers, determined that whether the injury
arose by reason of definite cuts suffered
by her towards the end of April or whether it arose by reason of a series of
cuts extending over a longer period of time, in my opinion she is equally
entitled to recover for the injury that she sustained.
At page 161 he continues:—
It has been decided by your Lordships'
house in the case of Grant v. Kynoch,
and also in Brintons, Ltd. v. Turvey,
that disease arising out of and in the course of an employment may in certain
circumstances be regarded as an accident within the meaning of the statute, and
be made the proper subject-matter of a claim for compensation. In the present
case there is no dispute that the disease from which the respondent suffered is
a disease which distinctly arose out of the injuries that she received while in
the course of her employment, and it cannot be disputed that her cut and
abrased fingers were on each occasion what would be called an accident within
the meaning of the statute. The only question, therefore, for consideration is
whether, when the disease is due not to one specific and definite accident but
to a series of accidents, each one of which is specific and ascertainable though
its actual influence on the resulting illness cannot be precisely fixed the
workman is disentitled to the benefit of the statute.
My Lords, I cannot find any words in the
statute which permit of such a construction. In the present case personal injury
was suffered, it was suffered by accident, and the accident is no less
accidental because it occurred on a series of occasions instead of on one; it
follows that the claim to compensation was properly established.
Counsel for the appellant referred to Fife
Coal Co. Ltd. v. Young,
the actual decision in which was that the
[Page 573]
workman was entitled to compensation for dropped
foot. Stress was laid, however, upon the following passage in the speech of
Viscount Caldecote (with whom Lord Thankerton and Lord Russell of Killowen
agreed) where, after referring to three cases decided by the Court of Appeal
after the decision in the House of Lords in Brintons Ltd. v. Turvey, the Lord Chancellor
states at page 88:—
There is no reason to doubt the correctness
of the decisions in the three cases I have last mentioned. In all of them the
facts were such as to make it impossible to identify any event which could,
however loosely, be called an accident. In these cases, the workmen failed, not
because a disease is outside the purview of the Workmen's Compensation Act altogether,
but because the burden of proof that there had been an accident was not
discharged.
When the workman's claim is in respect of a
progressive disease, the difficulty of pointing to a definite physiological
change which took place on a particular day is, in general, likely to be almost
insuperable, and in 1906 Parliament, in the case of certain diseases, and
later, by an enlargements of the schedule of industrial diseases, relieved the
workman in the specified cases of this obligation. However, if the
circumstances of any claim in respect of incapacity due to disease are such as
to make it possible to discharge this burden, I see no reason for thinking that
what is called a disease is different in principle from a ruptured aneurism, as
in Clover, Clayton & Co. Ltd. v. Hughes, or heart failure, as
in Falmouth Docks & Engineering Co. Lid. v. Treloar.
Our attention was also called to Lord Atkin's
quotation, at page 90, of the following words of Lord Fleming:—
What happened to him on April 27th transformed
him from a man who was not suffering from dropped foot into a man who was.
As to the extracts from the speech of Viscount
Caldecote, it is to be noted that the first part of the quotation follows a statement
in the same paragraph that each of the two cases in the Court of Appeal,
referred to as subsequent to the decision in Brintons case (1), was
decided in favour of the employer
on the grounds that the injury was the
inevitable result of work long continued and was not anything which could be
described as having happened on a particular duty;
not, it will be noticed, as having happened on a
particular day. And later the Lord Chancellor remarks:—
The claimant sustained a definite
physiological injury in the reasonable performance of his duties, and as the
result of the work he was engaged in at the time of the injury. The fact that,
in the course of his work for a month before the day when he first suffered
from dropped foot, he had felt some loss of the power of dorsiflexion of the
right foot seems to me in no way to affect his right to compensation.
[Page 574]
As to the extract from the speech of Lord Atkin,
it should be observed that he is careful to point out that while the
distinction between accident and injury must be observed, it is hardly possible
to distinguish in time between the two where a man suffered from rupture, an
aneumism bursts, the muscular action of the heart fails, while the man is doing
his ordinary work turning a wheel or a screw, or lifting his hand. In fact, as
Lord Justice Atkin in Williams v. Guest, he had already said:—
It also has to be remembered that the
cumulative effect of a series of accidents may still entitle the workman to
compensation, as in Selvage v. Charles Burrell & Sons Ld., in which case the
girl in the course of her employment contracted in the course of four months a
series of small cuts or abrasions the effect of which was to cause an
incapacity, and it was held that it was not necessary to be able to name and
give evidence of the precise time at which the accident happened which had
caused the incapacity.
The distinction referred to by Lord Atkin
between accident and injury is emphasized in the New Brunswick Act and nowhere
more particularly than in section 7. Until the amendment made in 1938 to the
New Brunswick Act, the phrase "unless such accident was in the opinion of
the Board intentionally caused by such workman, etc." used the word
"injury" instead of "accident" but it is now an accident
wholly or principally due, in the opinion of the Board, to a fortuitous event
unconnected with the industry in which the workman was employed that may
prevent the workman seeking compensation. It seems advisable to point out that
the case of an aggravation of a disease existing prior to an injury is dealt
with specifically in the New Brunswick Act by paragraph (d) of section
7.
These matters are referred to to indicate the
necessity of taking into consideration the whole of the Act in coming to a
conclusion as to whether; in the circumstances of the present case, the injury
to the respondent was caused by accident. The history of the Act shows that the
statute should be construed liberally in favour of all workmen within its
purview. In the instant case the respondent, in operating the machine in the
course of her employment, sustained a definite physiological injury and as the
result of the work she was engaged in at the time of the injury. In operating
the machine she did the very thing she meant to do but that she should tear the
ligaments in her back
[Page 575]
was an entirely unpredictable result. It is not
possible to distinguish in time between the respondent's actions of pulling the
lever and the injury she sustained, and that injury, even though arising by
reason of a series of operations of the machine, should be held to have been
caused by accident.
The appeal should be dismissed.
Hudson J.—The respondent, Miss Theed, made a claim for compensation for
injuries caused by accident, under the Workmen's Compensation Act of New
Brunswick. The Board, after hearing evidence, held (1) that the personal injury
of which the applicant complains arose out of and in the course of her
operating an embossing machine in an employment within the scope of Part I of
the said Act; (2) that the said injury was not caused by accident.
From this decision of the Board an appeal was
taken to the Supreme Court, Appeal Division, and her appeal was allowed. In concluding the judgment it was stated:
The appellant undoubtedly sustained physical
injury by accident and there seems no lack of definiteness about the time at
which it occurred.
The facts are fully set out in the judgment of
the court below. Briefly stated, Miss Theed, who was employed originally as a
stenographer, was put to work on an addressograph machine. On the first night
after she had operated this machine, she felt a sore spot in the middle of her
back and complained about this to the manager. However, she continued to
operate it for two days and then did not do it for two weeks and did it again
for a couple of days. On the second period of operation, she says that she
still felt the sore spot. She did not feel any snap or anything like that and
the sore spot did not seem to get worse. After it got to a certain point it
kept about the same. Eventually she was operated on by a Doctor Skinner. In
giving his evidence he said:
Injury like this is described as tears in
the ligaments. The only way we could define it to ourselves was that the
fibrous ligamentous attachments to that particular bone had been strained and
in healing they had healed so as to give abnormal tensions, so with the idea of
releasing those tensions we went in. We freed all the muscles and ligamentous
attachments from that part of the bone and removed the spinous process itself.
Dr. Skinner says that the condition could only
result from injury.
[Page 576]
On the appeal coming before this Court, it was
urged on behalf of the appellant that the injury sustained by Miss Theed was
the result of continuous operations in the work on which she was employed and
that it was impossible to point to any particular occurrence in point of time
which gave rise to such injury. The case of Innes or Grant v. G.
& G. Kynoch
was cited, and in particular the words of Lord Birkenhead at page 772:
But all that is material is that the
infection should have been the result of contact at some particular time and
that this particular time should have been during the course of the
employment—That it should have been some particular occurrence happening at
some particular time is essential, otherwise it is not in the nature of an
accident. What that particular time was is immaterial so long as it was in the
course of the employment.
Many other authorities were cited, but most of
these are referred to in the judgment of the court below and I do not think it
is necessary to further discuss them.
I think it is clear from the evidence that the
injury suffered by Miss Theed was initiated by her work on the first day that
she started, and that on each succeeding day that she worked at the machine the
amount of the injury was increased.
There is one case which I think is very closely
in point, that is, Burrell v. Selvage. In this case a
workgirl had received a series of scratches and cuts on her hands during her
work, extending over a period of some months, the combined effect of which
produced a septic condition incapacitating her from work. It was held by the
House of Lords that this was an injury by accident for which she was entitled
to compensation under the Workmen's Compensation Act, 1906, although the
times and places of the several scratches and cuts could not be fixed and her
condition could not be attributed to any one particular injury. Lord
Buckmaster, in giving the judgment, said at pages 1341 and 1342:—
The statute provides that, if in any
employment personal injury by accident arising out of and in the course of the
employment is caused to a workman, his employer shall, in certain
circumstances, be liable to pay compensation. The employer is bound to pay
compensation. The employer is bound to pay compensation for the personal
injury, the personal injury must be due to an accident, and the accident must
arise out of and in the course of the employment.
[Page 577]
It has been decided by your Lordships' House in
the cases of Innes (or Grant) v. Kynoch, and Brintons Ltd.
v. Turvey,
that disease arising out of and in the course of the employment may in certain
circumstances be regarded as an accident within the meaning of the statute, and
be made the proper subject-matter of a claim for compensation. In the present
case, there is no dispute that the disease from which the respondent suffered
was a disease which distinctly arose out of the injuries which she had received
in the course of her employment, and it cannot be disputed that the cuts and
abrasions on her fingers were on each occasion what would be called an
"accident" within the meaning of the statute. Therefore, the only
question for consideration is whether, when the disease is due not to one
specific and definite accident, but to a series of accidents, each one of which
is specific and ascertainable, although its actual influence on the resulting
illness cannot be precisely fixed, the workman is not entitled to the benefit
of the statute. I cannot find any words in the statute which permit of such a
construction. In the present case personal injury was suffered, it was suffered
by accident, the accident is no less accidental because it occurred on a series
of occasions instead of on one. It follows that the claim to compensation was
properly established.
I think that the concluding words of Lord
Buckmaster are directly applicable to the present case. Miss Theed suffered
personal injury by accident and the accident was no less accidental because it
occurred on a series of occasions instead of on one. I agree with the court
below and would dismiss the appeal with costs.
Appeal
dismissed with costs.
Solicitor for the appellant: J. J. F. Winslow.
Solicitor for the respondent: D. King Hazen.
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