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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Malone v. Cayzer, Irvine, & Co. [1908] ScotLR 351 (23 January 1908)
URL: http://www.bailii.org/scot/cases/ScotCS/1908/45SLR0351.html
Cite as: [1908] ScotLR 351, [1908] SLR 351

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SCOTTISH_SLR_Court_of_Session

Page: 351↓

Court of Session Inner House First Division.

[Sheriff Court at Glasgow.

Thursday, January 23. 1908.

45 SLR 351

Malone

v.

Cayzer, Irvine, & Company.

Subject_1Master and Servant
Subject_2Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37), Schedule 1, sec. 1
Subject_3Death Resulting from Injury
Subject_4Suicide — Averments that Accident to Eye Brought about Insanity Resulting in Suicide — Relevancy.
Facts:

A workman who had lost the sight of his left eye met with an accident involving the loss of sight of his remaining eye. He thereafter became insane and committed suicide. In an arbitration under the Workmen's Compensation Act 1897 at the instance of his widow against his former employers the pursuer averred—“In consequence of the said injury the said J. M. received a severe shock and his nervous system completely broke down. Owing to the gradual loss of sight in his right eye and consequent blindness the said J. M.'s mind became affected and he became insane and … committed suicide.… The death of the said J. M. was due to the foresaid accident.…”

Held that there must be a proof.

Per the Lord President—The claimant “will have to do something more than say simply that there was a possibility of death arising from such an injury in such a way—she must show that it was in fact the result of the injury.”

Statement of law by Collins (M.R.) in Dunham v. Clare, [1902] 2 KB 292, approved.

Headnote:

The Workmen's Compensation Act 1897, (60 and 61 Vict. c. 37), Schedule 1, sec. 1, enacts—“The amount of compensation under this Act shall be—( a) When death results from the injury…”

In an arbitration under the Workmen's Compensation Act 1897 between Mrs Mary Ann Mullen or Malone, 401 Rutherglen Road, Glasgow, pursuer, and Cayzer, Irvine, & Company, shipowners, 109 Hope Street, Glasgow, defenders, the pursuer claimed compensation for the death of her husband

Page: 352↓

. The Sheriff-Substitute ( Davidson) sustained a plea that the application was irrelevant, and dismissed it. An appeal was taken.

The stated case set forth that the appellant made, inter alia, the following averments—“… (2) On or about 25th May 1907, and for some months prior thereto, the said deceased John Malone was in the employment of the respondents at their repairing shop in Finnieston Street as a hammerman. Said repairing shop is a factory within the meaning of the Workmen's Compensation Act 1897.

“(3) On said date, about 7·30 A.M., the said deceased John Malone was engaged in the course of his employment in said repairing shop cutting an iron ladder. Another of respondents' workmen was holding a chisel against said ladder and the deceased was striking the chisel with his hammer when a piece of said iron ladder flew off, penetrating his right eye.

(4) The said deceased John Malone was taken to the Eye Infirmary, where his eye was treated and he was then sent home. About twenty years before the date of said accident the said deceased John Malone had met with an accident which caused him to lose the sight of his left eye, and when he was injured on 25th May 1907 the sight of his right eye immediately began to fail, and became gradually worse until he was rendered almost blind.

(5) In consequence of the said injury the said John Malone received a severe shock, and his nervous system completely broke down. Owing to the gradual loss of sight in his right eye and consequent blindness, the said John Malone's mind became affected and he became insane, and on 20th August 1907 he committed suicide in his house at 401 Rutherglen Road.

(6) The death of the said John Malone was due to the foresaid accident, which arose out of and in the course of his employment with the respondents in their said factory at Finnieston Street.”

The question of law was—“Whether, in the circumstances set forth in the case, the application was rightly dismissed?”

Argued for appellant—The appellant was entitled to prove her averments that her husband's insanity and consequent death were due to the accident. The deceased's insanity was brought on by loss of sight. Such a form of insanity was recognised by medical science and by the leading alienists ( e.g., Clouston). The question at issue was whether the suicide was a natural result of the injury, apart from whether it was a probable consequence of it or not. That was a pure question of fact, of which the appellant was entitled to a proof— Dunham v. Clare, [1902] 2 KB 292, per Collins (M.R.), p. 296. Reference was also made to Golder v. Caledonian Railway Company, November 14, 1902, 5 F. 123, 40 S.L.R. 89.

Argued for respondents—The decree of the Sheriff was right. Malone's death was due to his own act. His suicide could not be regarded as the natural consequence or even as the probable result of the accident. It was not directly traceable to the injury, and if it were so traceable there was, in the words of Collins (M.R.) a new act giving a fresh origin to the after consequences— Dunham, cit. supra. The damages were too remote to justify inquiry. Suicide was not an “accident” in the sense of the Workmen's Compensation Act— Hensey v. White, [1900] 1 QB 481 (opinion of Collins, L. J.). The primary and actual cause of Malone's death was the diseased condition of his brain. In any event that was a novus actus interveniens. Reference was made by way of contrast to Lloyd v. Sugg & Company, [1900] 1 Q.B. 486.

At advising—

 Judgment:

Lord President—The facts which give rise to the controversy here are certainly somewhat out of the common. It is an arbitration under the Workmen's Compensation Act, the claimant in it being the widow of a workman called Malone, who was in the employment of the respondents Cayzer, Irvine, & Company. The averments of the claimant and appellant set forth that while Malone was at his work in May a splinter of iron flew into his right eye. That of course was an ordinary accident in the course of his employment, which, had he survived, would have entitled him to make a claim for compensation in the ordinary way. It seems that he had many years before lost the sight of his other eye, and the injury was such that the sight of his remaining eye, according to the averments, immediately began to fail, and became gradually worse until he was rendered almost blind. Then, continues the claimant—I now read textually—“In consequence of said injury the said John Malone received a severe shock, and his nervous system completely broke down. Owing to the gradual loss of sight in his right eye, and consequent blindness, the said John Malone's mind became affected, and he became insane, and on 20th August 1907 he committed suicide in his house at 401 Rutherglen Road. The death of the said John Malone was due to the foresaid accident, which arose out of and in course of his employment with the respondents.”

Now, upon that statement of the facts, the learned Sheriff-Substitute before whom the case came as arbiter dismissed the application as irrelevant. The claimant has appealed to your Lordships, and the motion before us is to send the case back to the Sheriff and tell him to allow a proof of those averments which I have read. Of course there can be no question,. I take it, as to the accident having actually happened—that is to say, the splinter going into his eye, but what happened afterwards is evidently matter upon which there may be controversy.

The expression in the statute is that the death must be the result of the injury, and really the views which I hold have been so extremely well expressed by Lord Collins when he was Master of the Rolls that I prefer to take what he has said rather than try to re-express them myself. The passage

Page: 353↓

which I am going to cite is taken from the case of Dunham v. Clare, L.R., [1902] 2 KB 292. The state of the facts in that case was that a man was carrying some heavy pipes, one of which slipped and fell on his foot, inflicting a wound in his toe. He was put into an hospital, and a disease called phlegmonous erysipelas supervened. The evidence was that erysipelas of this description was a very unusual consequence of a wound of the kind, and that, according to the theory which at present obtains, was caused by the introduction somewhere or other of a germ. Lord Collins says this—“The applicant for compensation therefore has to show an accident causing injury, and death or incapacity resulting from the injury. In the present case there was admittedly an accident causing injury, and the only question is whether death in fact resulted from the injury. If death in fact resulted from the injury, it is not relevant to say that death was not the natural or probable consequence thereof. The question whether death resulted from the injury resolves itself into an inquiry into the chain of causation. If the chain of causation is broken by a novus actus interveniens, so that the old cause goes and a new one is substituted for it, that is a new act which gives a fresh origin to the after-consequences. In dealing with an obligation created by the Act we are not dealing with a case of contract or tort or with a liability of a criminal nature. In the case of contract, a person who commits a breach of it is liable for the consequences which naturally follow from the breach. So, too, in cases of tort, when the question arises whether a person is liable in respect of a breach of some duty imposed upon him, he probably, and in some cases certainly, comes under a somewhat larger liability than would be the case if it were a breach of contract, but still the liability is measured by what are the reasonable and probable consequences of his breach of duty. That lets in the consideration of reasonableness. No question of reasonableness comes into the present discussion. The Act has imposed the liability irrespective of any error of judgment or negligence on the part of the employer. The only question to be considered is, Did the death or incapacity in fact result from the injury?” That exactly expresses my opinion, and if that is so I think that the Sheriff-Substitute was too quick here in dismissing this case as irrelevant upon the face of it.

I do not think I ought to say much more, except to explain that I am very far from saying that upon the face of this pleading there is evidently made out a case, because the question is whether causation is or is not made out, and it may be a somewhat uphill matter for the claimant to prove her case. I should like to say that she will have to do something more than say simply that there was a possibility of death arising from such an injury in such a way—she must show that it was in fact the result of the injury. I have some doubts as to whether the state of knowledge of cerebral pathology is so fixed as, in circumstances like this, to enable one to reach such a conclusion, but I do not think we could try the matter from our own ideas on such subjects. Therefore I am of opinion that we should remit the case to the Sheriff-Substitute, and order him to allow an inquiry into the matters averred.

Lord M'Laren—If we were to criticise the statements of facts in this case with the same strictness which we do in questions of relevancy in actions in this Court, there is a great deal I think to be said against the relevancy of the averments, because I cannot gather from the Sheriff-Substitute's statement anything more than this, that the man committed suicide in consequence of the depression of mind brought on by his blindness. There is no averment of insanity in the physiological sense of a result of disease of the brain, but merely that a man has committed suicide, and is supposed to have done so under some insane impulse. It seems to me that in construing the Act of Parliament, and particularly the beginning of the First Schedule, we must hold that when the Act prescribes as a condition of compensation that death results from the injury, what is within the contemplation of the statute is a material injury with death materially resulting from it. To explain what I mean regarding insanity—if a person, being a workman, were to receive a blow or a wound on the head which set up inflammation of the brain, and a medical expert came to the conclusion that the injury to the brain was the result of the blow on the head, and if the injury went on and left the man in an insane condition, from which eventually he died, then I should not for a moment doubt that the man's death was the result of the accident. But, on the other hand, it is easy to figure cases of death resulting only from the moral effect of an accident. If, for example, a man in consequence of the loss of his sight took to drinking and shortened his life by intemperance, that would be a very clear case for not giving compensation, because although in a sense death was the result of the injury, it was not a material but a moral result. Now, in this case I am not disposed, anymore than your Lordship, to construe the statement of the Sheriff-Substitute, which is merely an echo of the averments of the party, with great strictness. I think there ought to be a proof, and as the parties might wish to bring the case before us again, I hope the Sheriff-Substitute will direct his attention to the point whether this is insanity that would be proved by medical evidence of the symptoms, or whether it is anything more than just a mode of stating the supposed cause, because there must be some cause for the suicide. I agree that it is desirable to have the facts brought before us, and I notice that in the case of Dunham, [1902] 2 KB 292, which your Lordship cited, there had been an inquiry, and the judgment of the Court proceeded upon a statement of the facts proved in the case.

Lord Kinnear—The question whether

Page: 354↓

death has resulted from an accident is always a question of fact. Therefore I think it is indispensable that the arbitrator should have the facts ascertained before he decides it. I therefore agree that the case should go back to the learned Sheriff in order that the petitioner may have an opportunity of proving her case if she can. That being so, I think the less one says about the prima facie aspect of the statement of the facts probably the better, but one cannot help seeing that there may be a difficulty in connecting the accident with the alleged result by an unbroken chain of connection. The exact point where the difficulty may arise I do not know, but speaking for myself I do not think I have sufficient knowledge of the pathology of insanity to form even a provisional opinion. Therefore I think it better to say that I agree with your Lordships that the facts must be ascertained.

Lord Pearson was absent.

The Court answered the question in the case in the negative, recalled the determination of the arbiter, and remitted to the Sheriff-Substitute as arbiter to allow parties a proof of their averments.

 Counsel:

Counsel for the Pursuer (Appellant)— Morison, K.C.— J. A. Christie. Agents— St Clair Swanson & Manson, W.S.

Counsel for the Defenders (Respondents) Hunter, K.C.— R. S. Horne. Agents— Anderson & Chisholm, Solicitors.

 1908

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URL: http://www.bailii.org/scot/cases/ScotCS/1908/45SLR0351.html