Fenton v Thorley & Co Ltd

Lorp Macnacuten. My Lords, Fenton, the
appellant, was a workman in the employment of the respond-
ents, 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

(1) (1892) 19 R. 855. (3) (1868) 34 Conn. 574, 578.
(2) (1899) 70 Amer. St. 212; 107 (4) (1888) 131 U. S. 100, 121.
Towa, 538. (5) [1896] 2 Q. B. 248,

(6) [1893] 1 Q. B. 750.

A.T. AND PRIVY COUNCIL.

removing the contents, which come out, or ought to come out,
dried and pressed into separate layers of cakes.

On December 8, 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 befell 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 (1), which in its circum-
stances is not distinguishable from the present case. In
Hensey v. White (1) a passage was cited from the opinion of

(1) [1900] 1 Q. B. 481.

445

H. L. (.)
1903
—~

FENTON
Vv.

THORLEY

& Co.,

LIMITED.

Lord
Macnaghten.

446 .

HOUSE OF LORDS [1903]

H.L.(E.) Halsbury LC. in Hamilton, Fraser ¢ Co. v. Pandorf & Co. (1),

1903

—~
FENTON
©.

THORLEY

ord
Macnaghten.

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 (2), as they have held here, that there was no accident,
because (to quote the leading judgment) there was '' am entire
lack of the fortuitous element.'' What the man " was doing,"
it was said, '' he' was doing deliberately, and in the ordinary
course of his work, and that which happened was in no sense
a fortuitous event." To the expression as used by Lord
Halsbury in the passage in which it occurs, no possible objec-
tion can be taken; but it is, I think, to be regretted that the
word "fortuitous" should have been applied to the term
'"'injury by accident"? in the Workmen's Compensation Act.
If it means exactly the same thing as '' accidental," the use of
the word is superfluous. If it introduces the element of hap-
hazard (if I may use the expression), an element which is not
necessarily involved in the word "' accidental," its use, I venture
to think, is misleading, and not warranted by anything in
the Act.

And now I must ask your Lordships' attention to the Act
itself ; but before doing so, there are two observations I should
like to make.

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. Anybody would say that the man
had met with an accident in lifting a weight, or trying to move
something too heavy for him.

One other remark I should like to make. It does seem to
me extraordinary that anybody should suppose that when the
advantage of insurance against accident at their employers'
expense was being conferred on workmen, Parliament could
have intended to exclude from the benefit of the Act some
injuries ordinarily described as "accidents" which beyond all
others merit favourable consideration in the interest of work-

(1) (1887) 12 App. Cas. 518. (2) [1900] 1 Q. B. 481.

A.C. AND PRIVY COUNCIL.

men and employers alike. A man injures himself by doing
some stupid thing, and it is called an accident, and he gets the
benefit of the insurance. It may even be his own fault, and
yet compensation is not to be disallowed unless the injury is
attributable to ''serious and wilful misconduct" on his part.
A man injures himself suddenly and unexpectedly by throwing
all his might and all his strength and all his energy into his
work by doing his very best and utmost for his employer,
not sparing himself or taking thought of what may come upon
him, and then he is to be told that his case is outside the Act
because he exerted himself deliberately, and there was an entire
lack of the fortuitous element! I cannot think that that is
right. I do think that if such were held to be the true con-
struction of the Act, the result would not be for the good of
the men, nor for the good of the employers either, in the long
run. Certainly it would not conduce to honesty or thorough-
ness in work. It would lead men to shirk and hang back, and
try to shift a burthen which might possibly prove too heavy
for them on to the shoulders of their comrades.

-Now I turn to the Act. The title of the Act is, '' An Act to
amend the law with respect to compensation to workmen for
accidental injuries suffered in the course of their employment."
It has been held that you cannot resort to the title of an Act
for the purpose of construing its provisions. Still, as was said
by a very sound and careful judge, "' the title of an Act of Parlia-
ment is no part of the law, but it may tend to shew the object
of the legislature."" Those were the words of Wightman J. in
Johnson v. Upham (1), and Chitty J. observed in Hast and
West India Docks v. Shaw, Savill and Albion Co. (2) that the
title of an Act may be referred to for the purpose of ascertain-
ing generally the scope of the Act. Surely, if such a reference
is ever permitted, it must be permissible in a case like this,
where Parliament is making a new departure in the interest of
labour, and legislating for working men, presumably in language
that they can understand.

The 1st section of the Act, sub-s. 1, declares that 'if in
any employment to which this Act applies personal injury by
(1) (1859) 2 E. & E. 263. (2) (1888) 39 Ch. D. 531.

447

HL.)
1903
—~

FENTON

v.
THORLEY

rd
Macnaghten.

448

H. L. (E.)
1903

a
FENTON
Vv
"THORLEY
& Co.,
LIMItep.

Lord

Macnaghten.

HOUSE OF LORDS [1903]

accident arising out of and in the course of the employment is
caused to a workman," his employers shall be liable to pay
compensation. Now the expression "injury by accident '"'
seems to me to be a compound expression. The words '' by
accident'' are, I think, introduced parenthetically as it were
to qualify the word '' injury," confining it to a certain class of
injuries, and excluding other classes, as, for instance, injuries
by disease or injuries self-inflicted by design. Then comes the
question, Do the words " arising out of and in the course of
the employment" qualify the word "' accident," or the word
"injury," or the compound expression '' injury by accident "' ?
I rather think the latter view is the correct one. If it were
a question whether the qualifying words apply to "injury"
or to "'accident,'' there would, I think, be some difficulty in
arriving ata conclusion. I find ins. 4 the expression "' accident
arising out of and in the course of their employment." In
s. 9 I find the words '' personal injury arising out of and in the
course of his employment," while in s. 1, sub-s. 2 (0), the
qualifying words seem to be applied to the compound
expression '' injury to a workman by accident."" The truth is
that in the Act, which does not seem to have had the benefit
of careful revision, "' accident" and " injury "'—that is, injury
by accident—appear to be used as convertible terms; for
instance, in s. 2 '' notice of the accident" has to be given,
and that notice is referred to immediately afterwards as " notice
in respect of an injury under the Act." I come, therefore, to
the conclusion that the expression "accident" 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.

It would serve no useful purpose to review the English cases
on the subject. The decisions before Hensey v. White (1) are
curiously conflicting. It would seem almost as if the Court,
in some cases at least, simply confirmed the finding of the
county court judge as a finding of fact, however opposed the
finding might be to a previous decision of the Court on facts
precisely similar. With the decision in Hensey v. White (1),

(1) [1900] 1 Q. B. 481.

A. €. AND PRIVY COUNCIL.

449

and the decisions in which that case has been followed, H.L.(B)

including Roper v. Greenwood (1), speaking with all deference,
I am unable to agree.

There is, however, a recent decision of the Court of Session
in Scotland to which I should like to call your Lordships'
attention, and in which I agree entirely. It is the case of

1903

—~

FENTON

V.
THORLEY
& Co.,
Lim1rep.

Stewart v. Wilsons and Clyde Coal Co., Ld. (2) A-miner Macnaghten.

strained his back in replacing a derailed coal hutch. The
question arose, Was that an accident? All the learned judges
held that it was. True, two of the learned judges expressed
an opinion that it was ''fortuitous," but they could not have
used that expression in the sense in which it was used in
Hensey v. White. (8) What the miner did in replacing the
hutch he certainly did deliberately and in the ordinary course
of his work. There was nothing haphazard about it. Lord
M'Laren observed that it was impossible to limit the scope of
the statute. He considered that ''if a workman in the reason-
able 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 appellant
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."

The learned counsel for the respondents, in his able address,
referred to several cases on policies of insurance intended to
cover injuries described either as arising from accidental,
violent, and external causes, or in somewhat similar terms. I
do not think that these cases throw much light upon the
present question. They turn on the meaning and effect of
stipulations for the most part carefully framed in the interest
of the insurers. But on the whole they do not, I think, make
against the construction which I ask your Lordships to put on

(1) 83 L. T. (N.S.) 471. (2) 5 F. 120.
(3) [1900] 1 Q. B. 481.

450

H. L. (E)
1903

—~
FENTON
uw.
THORLEY
& Co.,
LimiIrep.

—_

Macnaghten.

HOUSE OF LORDS [1903]

the word "accident" in the Workmen's Compensation Act.
I will not trouble your Lordships by going through the cases
which Mr. Powell cited. I will only refer to one, United
States Mutual Accident Association v. Barry (1), a case of
considerable authority, for it was a case in the Supreme Court
of the United States. A jury had found in favour of the
assured, who had injured himself fatally in jumping off a
platform some four or five feet high. There was a motion for
a new trial on the ground of misdirection. The Court refused
to disturb the verdict. In the course of the judgment two
cases were referred to with approval as supporting the con-
clusion at which the Court arrived. One was an English,
the other an American case. I give them both as stated in
the judgment. ''In Martin v. Travellers' Insurance Co." (2)
said the learned judge who delivered the opinion of the Court,
"the policy was against any bodily injury resulting from any
accident or violence, ' provided the injury should be occasioned
by any external or material cause operating on the person of
the insured.' In the course of his business he lifted a heavy
burden and injured his spine. It was objected that he did not
sustain bodily injury by reason of an accident. The plaintiff
recovered. In North American Insurance Co. v. Burroughs (8)
the policy was against death in consequence of accident, and
was to be operative only in case the death was caused solely
by an accidental injury. It was held that an accidental strain
resulting in death was an accidental injury within the meaning
of the policy, and that it included death from any unexpected
event happening by chance and not occurring according to the
usual course of things."

My Lords, I have no doubt that in the present case the
county court judge ought to have found in favour of the
appellant, if he had not been compelled to decide the other
way by recent decisions in the Court of Appeal.

I move your Lordships that the decision of the Court of
Appeal and of the county court judge be reversed with costs in
both Courts, and that the action be remitted to the county

(1) Tel: USS. 100, 121; (2) (1859) 1 F. & F. 505.
(3) (1871) 69 Penn. St. 43.

A. G. AND PRIVY COUNCIL.

451

court with a direction to the judge to ascertain the amount of H.L.(m)

compensation to which the appellant is entitled. The costs
here will follow the rule laid down for pauper appeals.

Lorp SHAND (read by Lord Macnaghten). My Lords, I
agree in thinking that the appeal should be sustained, and the
judgment of the Court of Appeal and of the county court
judge reversed ; and I concur in the judgment of my noble
and learned friend Lord Macnaghten, which I have had an
opportunity of carefully considering.

If the word "' accident' were interpreted in the Workmen's
Compensation Act, 1897, or were there defined so as to bear
a special limited or narrow sense only, it might be necessary
to consider and examine the American authorities, which were
so fully cited by Mr. Powell in his able argument. But I
agree with my noble and learned friend 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 already been 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 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.

Lorp Davry. My Lords, I have had an opportunity of
reading and considering the judgment which has just been
delivered by my noble and learned friend Lord Macnaghten.
I agree with it, and have nothing to add to that judgment.

Lorp Ropertson. My Lords, it is not disputed that this
man, being a person of ordinary strength, suffered personal
injury while working at his employer's business, and because
he applied such force to his work as to rupture him. Nor is it
suggested that he hurt himself intentionally. The plain fact

1903

—~

FENTON

VY
THORLEY
& Co.,
Limirep,

452

151 J 0EKG 39)
1903

—m~
FENTON
v
THORLEY
& Co.,
LimIvTEp.

Lord Robertson.

HOUSE OF LORDS [1903}

is that he miscalculated or by inadvertence did not compare
the relative resisting forces of the wheel and his body. In
this state of facts I am of opinion that this personal injury
arose by accident out of and in the course of the man's
employment in the sense of the Ist section of the Work-
men's Compensation Act, 1897, and I think there was '"'an
accident' in the sense of the other sections in which the
word "accident " is used, whether preceded by "an," " any,'*
or <* the?'

Much 'poring over the word "accident '' by learned counsel
hes evolved some subtle reasoning about these sections. I
confess that the arguments seem to me to be entirely over the
heads of Parliament, of employers, and of workmen. No one
out of a Law Court would ever hesitate to say that this man
met with an accident, and, when all is said, I think this use
of the word is perfectly right. The word "accident" is not
made inappropriate by the fact that the man hurt himself.
This use is indeed directly sanctioned by the Act itself, for
s. 1, sub-s. 2 (c), plainly implies that an accident giving right
to compensation may be attributable to the fault of the injured
man himself. In the present instance the man by an act of
over-exertion broke the wall of his abdomen. Suppose he had
by the same act broken his leg, the question would be the
same. But suppose the wheel had yielded and been broken
by exactly the same act, surely the breakage would be rightly
described as accidental. Yet the argument against the applica-
tion of the Act is in this case again exactly the same—that
there is nothing accidental in the matter, as the man did what
he intended to do. The fallacy of the argument lies in leaving
out of account the miscalculation of forces, or inadvertence
to them, which is the element of mischance, mishap, or
misadventure.

In this view, I do not rely on the historical circumstance
that the sticking of the wheel was caused by an accidental
leak. I think myself that the leak is too remote to impart
its own accidental character to the injury which ultimately
resulted to this man.

I am clear for allowing the appeal.

A.T. AND PRIVY COUNCIL.

453

Lorp Linpuey. My Lords, the Workmen's Compensation H. L. (E.)

Act, 1897, contains no definition of the word "accident"; but
the interpretation and legal effect of the Act, when applied to
ascertained 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 & Co., Ld. (1), 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 unex-
pected 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 unexpected
events.

In this Act of Parliament the word is used in a very loose
way. The title speaks of '' accidental injuries"; s. 1, sub-s. 1,
uses the expression ' personal injury by accident." Personal
negligence and even a wilful act on the part of an employer or
any one for whom he is responsible is not called an accident,
but it can be dealt with as if it were an accident: s. 1, sub-s. 2 (2).
Serious and wilful misconduct on the part of a workman
precludes him from obtaining the benefit of the Act: s. 1,

(1) [1901] A. C. 49, at p. 68.
A. ©. 1903. 3 2H

1£03
—w~
FEntTon
v.
THORLEY
& Co.,
Limitep.

454 HOUSE OF LORDS [1903]'

H.L.(E.) sub-s. 2 (c); but mere carelessness on his part does not.
1903 Further, s. 1, sub-s. 4, shews that the Act applies to cases
Fusrox where a workman sustains injuries for which, but for the Act,
THouamy be would have no remedy. In s. 2 "accident" and " accident
cece causing the injury"' are used indiscriminately in fixing the time
eae within which notice of it has to be given. :

— It is impossible to read the Act without coming to the con-
clusion that the object of the Legislature was to throw upon
certain classes of employers of labour the obligation to com-
pensate 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 s. 1, sub-s. 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 ope tay' 2 Mr.
Powell, in his very able argument, contended that there must
be, first, a personal injury; second, that there must be an
accident causing it; third, that such accident must be the proxi-
mate cause of the injury, and that nothing more remote than
the proximate cause can be properly taken into account. My
Lords, 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 a policy of insurance against accidents.

In an action on a policy the causa proxima is alone con-
sidered in- ascertaining the cause of loss; but in cases of other
contracts and in questions of tort the causa causans is by no
means disregarded. This was pointed out by Willes J. in
Grill v. General Iron Screw Colliery Co. (1), and is strikingly
illustrated by Siordet v. Hall (2) and numerous other cases of a
similar kind. Svordet v. Hall (2) was an action against a
steamship owner for injury to cargo caused by water escaping

(1) (1866) L. R. 1 C. P. 611. (2) (1828) 4 Bing. 607; 29 R. R. 651.

A.C. AND PRIVY COUNCIL.

from a pipe which had been burst by a sharp frost. The
defence was that the accident was an act of God for which the
defendant was not responsible. The judge, however, told the
jury that if the water had been unnecessarily placed in the
boiler, or, considering the season of the year, improperly left
there without heat to prevent the action of the frost upon
the pipe, the mischief was not occasioned by the act of God,
but by gross negligence. The jury found for the plaintiff. A
new trial was applied for on the ground of misdirection. The
Court held that the loss was attributable to negligence and was
not caused by the act of God so as to exonerate the defendant
from liability. In other words, attention was paid to the
circumstances under which the proximate cause produced the
damage complained of.

The rule that in contracts of insurance the proximate cause
of loss can alone be regarded is carried so far that if it were
rigidly applied to this Act of Parliament its evident object would
in many cases be clearly defeated. No doubt the rupture in
this case was the result of an effort voluntarily and strenuously
made, and it may be that a policy of insurance against accidents
might be so worded as not to cover an injury so caused. But
if we look further and inquire what called forth this unusual
effort, we find it was an unexpected difficulty in moving the
wheel of the machine, and that this difficulty arose from an
unobserved leakage which caused the material in the machine
to choke the mechanism. The machine was accidentally put
out of order. It had worked properly until it was stopped by
an accident. It is not straining language but using it in its
ordinary sense to describe the personal injury as caused by an
accident. The personal injury was the rupture; the cause of
it was the unintended and unexpected resistance of the wheel
to the force applied to it. Such a case appears to me to fall
within the Act.

Every injury must have a cause. The proximate cause may
be an internal strain; but if, as in this case, the strain is
occasioned by an effort to overcome an obstacle accidentally
presented to a workman in the course of his employment, I am

not prepared to say that the Act does not apply. I think it
3 2H 2

45

H. L. (E.)
1903

——_
FENTON
v.
THORLEY
& Co.,
Limirep.

Lord Lindley.

5

456

H. L. (E.)
1903

—~
FENTON

v
"THORLEY
& Co.,
LIMITED.

Lord Lindley.

HOUSE OF LORDS [1903}

clearly does, and that the interpretation put upon the Act in
Scotland in Stewart v. Wilsons and Clyde Coal Co., Ld. (1),
is to be preferred to the narrower construction occasionally
adopted in this country.

In this case the cause of the injury is known, and it is proved
that the cause was an accident. It is not, therefore, necessary
to consider whether the Act applies to cases in which the cause
of the injury is not known or in which the only unforeseen
occurrence is the personal injury itself. But if personal injury
is caused to a workman, and it arises out of and in the course
of an employment to which the Act applies, it appears to me
that prima facie the Act entitles him to compensation, but that
this inference may be displaced by proof that the injury is
attributable to his own serious and wilful misconduct, or to
some other cause which shews that the injury was not accidental.

The Scottish case above referred to is a valuable authority
on this point.

The appeal in this case ought to be allowed, and the case
remitted to the county court judge to assess compensation,
as proposed by my noble and learned friend on the Woolsack
(Lord Macnaghten).

Order of the Court of Appeal and award of the
county court gudge reversed, with costs here
and below; cause remitted to the county
court with a direction to the judge to ascertain
the amount of compensation to which the
appellant is entitled ; the appellant's costs in
this House to be taxed in the manner usual
in pauper appeals.

Lords' Journals, August 7, 1903.