Fenton v. Thorley & Co. [1904] UKHL 460

UKHL
Fenton v. Thorley & Co.
[1904] UKHL 460 · 1901-12-03

(Before Lords Macnaghten , Shand , Robertson , Davey , and Lindley .)

41 SLR 460Fenton v. Thorley & Company.Subject_ Master and Servant — Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37), sec. 1 (1) — “Accident” — Injury by Accident — Rupture Caused by Strain. Facts:The expression “accident” in the Workmen's Compensation Act 1897 is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed.A workman ruptured himself while attempting in the course of his employment to turn the wheel of a machine which had stuck.Held that his injury was an “injury by accident” within the meaning of the Workmen's Compensation Act 1897, and that he was entitled to compensation.Stewart v. Wilsons and Clyde Coal Company, Limited , November 14, 1902, 5 F. 120, 40 S.L.R. 80, approved.In an arbitration under the Workmen's Compensation Act 1897, brought in the County Court of Surrey by Fenton, a workman, against his employers Thorley & Company, the County Court Judge held that Fenton, who had ruptured himself while attempting to turn a wheel in the course of his employment, was not entitled to compensation, no accident having occurred within the meaning of the Act.On appeal the Court of Appeal ( Collins , M.R., Matthew , and Cozens Hardy , L.JJ.) affirmed this decision.Fenton appealed.The facts of the case are fully stated in the opinion of Lord Macnaghten.

At delivering judgment—

Lord Macnaghten —Fenton, the appellant, was a workman in the employment of the respondents, who manufacture for sale an article called “Thorley's Food for Cattle. He was employed to look after one of the machines used in preparing the food. It seems to have been a sort of combination of kettle and press. The actual operation performed by this machine takes about six or eight minutes. At the end of that time the workman in charge moves a lever, and then turns a wheel for the purpose of raising the lid and removing the contents, which come out, or ought to come out, dried and pressed into separate layers of cakes. On the 3rd December 1901 Fenton was at work at his machine. He had got through the operation on that day a good many times without hitch or difficulty, but about 9 p.m. or a little later, when the time came for opening the vessel the wheel would not turn. He then called a fellow-workman to his assistance, and the two men together set to work to move the wheel. Suddenly Fenton felt something which he describes as a “tear” in his “inside,” and it was found that he was ruptured. Fenton was a man of ordinary health and strength. There was no evidence of any slip or wrench or sudden jerk. It may 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. There is evidence that the wheel was short of one spoke or handle, which may have made it more difficult to grasp than usual, and it was discovered afterwards that there was a leak in the kettle which let moisture into the vessel below, glueing its contents together and so causing the lid to stick. I mention these circumstances merely for the purpose of putting them aside. It was indeed argued by the learned counsel for the appellant that if the mishap that befel Fenton was not of itself and apart from all other circumstances an accident within the meaning of that word as used in the Act, then these two things—the loss of a spoke in the wheel and the leak in the kettle—introduced an element of accident—a fortuitous element it was called—which would satisfy the terms of the enactment, however narrowly it may be construed. In my opinion they do not affect the question in the least. The Court of Appeal held that the injury which Fenton sustained was not “injury by accident” within the meaning of the Act. In so holding they followed an earlier decision of the Court in the case of Hensey v. White (1900), 1 Q.B. 481, which in its circumstances is not distinguishable from the present case. In Hensey v. White a passage was cited from the opinion of Lord Halsbury, L.C., in Hamilton, Fraser, & Co. v. Pandorff & Co ., 12 App. Cas. 518, in which his Lordship said—“I think the idea of something fortuitous and unexpected is involved in both words ‘peril’ or ‘accident.’” Founding themselves upon that expression, the learned Judges of the Court of Appeal held in Hensey v. White , as they have held here, that there was no accident,

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Lord Shand (whose judgment was read by Lord Macnaghten)—I agree in thinking that the appeal should be sustained, and that the judgments of the Court of Appeal and of the County Court Judge should be reversed, and I concur in the judgment of Lord Macnaghten, which I have had an opportunity of considering carefully. If the word “accident” were interpreted in the Workmen's Compensation Act 1897, or were there defined so as to bear a special or narrow sense only, it might be necessary to consider and examine the American authorities which were cited in the argument. But I agree with Lord Macnaghten in thinking that the words “personal injury by accident” and “accident” are used in the statute in the popular and ordinary sense of these words. I refrain from referring in detail to the language used in the different parts of the statute, because in so doing I should only be repeating what has been already said. I shall only add that, concurring as I fully do in holding that the word “accident” in the statute is to be taken in its popular and ordinary sense, I think that it denotes or includes any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence.Lord Davey concurred in the judgment of Lord Macnaghten.Lord Robertson —It is not disputed that this man, being a person of ordinary strength, suffered personal injury while

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Lord Lindley —The Workmen's Compensation Act 1897 contains no definition of the word accident, but the interpretation and legal effect of the Act when applied to ascertain facts are clearly questions of law as distinguished from questions of fact. I will assume for the present that it is for the plaintiff to prove personal injury caused by an accident. But when personal injury and its cause or causes have been ascertained, the question whether such cause or causes amount to an accident within the meaning of the Act is a question of law on which the decision of the County Court Judge is not final, and is not a question of fact on which his decision is not open to appeal. Upon this point I will only remind your Lordships of the observations of Lord Brampton in Hoddinott v. Newton, Chambers, & Company, Limited (1901) AC 49 , which were concurred in by the other noble Lords who heard that case, although they differed in the result. The word accident is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause, and if the cause is not known the loss or hurt itself would certainly be called an accident. The word accident is also often used to denote both the cause and the effect, no attempt being made to discriminate between them. The great majority of what are called accidents are occasioned by carelessness, but for legal purposes it is often important to distinguish careless from other unintended and any unexpected events. In this Act of Parliament the word is used in a very loose way. The title speaks of “accidental injuries,” sec. 1 (1) uses the expression “personal injury by accident.” Personal negligence and even a wilful act on the part of an employer or anyone for whom he is responsible is not called an accident, but it can be dealt with as if it were an accident (sec. 1 (2, b ). Serious and wilful misconduct on the part of a workman precludes him from obtaining the benefit of the Act (sec. 1 (2, c), but mere carelessness on his part does not. Further, sec. 1 (4) shows that the Act applies to cases where a workman sustains injuries for which but for the Act he would have no remedy. In sec. 2 “accident” and “accident causing the injury” are used indiscriminately in fixing the time within which notice of it has to be given. In the schedule the word “injury” is used, and the word “accident” does not occur. It is impossible to read the Act without coming to the conclusion that the object of the Legislature was to throw upon certain classes of employers of labour the obligation of compensating their workmen for personal injuries for which such employers were not responsible before, and it becomes necessary to determine what injuries are within the Act and what are not. The governing section is sec. 1 (1), which runs thus—“If in any employment to which this Act applies personal injury by accident arising out of and in the course of the employment is caused to a workman,” his employer shall be liable to pay compensation. What is meant by personal injury by accident? Mr Powell in his very able argument contended that there must be—first, a personal injury; secondly, that there must be an accident causing it; thirdly, that such accident must be the proximate cause of injury, and that nothing more remote than the proximate cause can be properly taken into account. I cannot accede to this contention. Assuming that there must be something unintended and unexpected besides the personal injury sustained, or, in other words, assuming that there must be a personal injury and an accident causing it, I cannot agree with Mr Powell that this statute ought to be construed as if it were

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Judgment appealed against reversed.Counsel for the Claimant and Appellant— Cyril Dodd, K.C.— F. Mellor— E. A. Jelf. Agent— C. F. Appleton.Counsel for the Respondents— A. Powell, K.C.— W. Shakespeare. Agents— W. Hurd & Son.