Demerara Company Ltd v Burnett

• Jurisdiction: Caribbean States
• Judge: Hallinan, J.,Lewis, J.,Marnan, J.
• Judgment Date: 02 December 1959
• Court: Federal Supreme Court (West Indies)
• Docket Number: Appellate Jurisdiction No. 3 of 1959
• Date: 02 December 1959

Federal Supreme Court (On appeal)

Hallinan, C.J., Lewis, J.A. and Marnan, J.A.

Appellate Jurisdiction No. 3 of 1959

Demerara Co. Ltd.

and

Burnett

Appearances:

Mr. J.H.S. Elliott, instructed by Mr. J.E. DeFreitas, for the defendants-appellants.

Mr. J.R. Singh, instructed by Mr. R.A. Gunraj, for the plaintiff-respondent.

Labour Law - Workmen's Compensation — Survivor's Benefits

Hallinan, J.

1 The applicant-respondent in this ease was a dependent of the deceased workman Burnett who was her husband and she claims compensation under the Workman's Compensation (Consolidation) Ordinance, 1952 of British Guiana on the ground that Burnett's death was caused by an accident arising out of and in the course of his employment by the appellant Company. There is no dispute about the facts. Burnett left his home one morning as an employee of the appellants to work on their estate. He was seen using an agricultural fork tilling the soil. When he failed to return home at the accustomed hour, two friends went to look for him they found him lying on the ground breathing heavily with the fork nearby and a substantial portion of the soil appeared to be freshly tilled. He died in hospital the next morning. The medical evidence established that death was due to the bursting of a blood vessel in the brain. The deceased was suffering from arteriosclerosis and strenuous effort such as forking the land could have caused bursting of the blood, vessel, in a person suffering from this disease.

2 On these facts the magistrate and (upon appeal) the Full Court have found that the appellants as employers are liable under the Ordinance of 1952.

3 Assuming that death was due, to an accident, the appellants admit that such accident arose out of and in the course of their, employment. However, it is submitted for the appellants that the case falls within paragraph (c) of the second proviso to section 3 (1) of the Ordinance of 1952 and that in consequence the appellants are not liable to pay the compensation provided by the Ordinance.

4 Section 3 (1) of the Ordinance begins in almost the same way as section 1 of the Workmen's Compensation Act 1925 of the United Kingdom. It reads:-

3

(1) If in any employment a workman suffers personal injury by accident arising out of and in the course of such employment his employer shall be liable to pay compensation in accordance with the provisions of this Ordinance.”

5 Then follow two provisos, the second of which reads:-

“Provided further that the employer shall not be so liable (under this Ordinance for such compensation should –

• (c) it be proved that the accident would not have occurred, or in so far as the incapacity or death would not have; been caused, but for a pre-existing diseased condition of the workman;”

6 Now, but for the provisions of the second proviso, it is clear on the English authorities that the appellants would be liable. The Full Court considered the case decided under the corresponding section of the English Act should be applied and relied on the case of McFarlane v. Hutton Bros. (Stevedores) Ltd. (1926) 20 B.W.C.C. 222, but this case does no more than follow Clover, Clayton & Co. Ltd. v. Hughes [1910] A.C. 242. In Clover's case, a workman suffering from serious aneurysms was employed in tightening a nut by a spanner when he suddenly fell down dead from rupture of the aneurysm. The House of Lords (Lords Atkinson and Shaw of Dunfermline dissenting) held there was evidence to support a finding that it was a case of personal injury by accident arising out of and in the; course of their employment.

7 It is not, I think, an exaggeration to say that the House of Lords in this case in order to assist injured, workmen and their dependents stretched the meaning of the word “accident” somewhat beyond its ordinary meaning: Lord Loreburn, L.C. set out the findings of fact by the arbitrator:-

“This man died from the rupture of an aneurysm, and ‘the death was caused by a strain arising out of the; ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal’. Again, ‘the aneurysm was in such an advanced condition that it might have burst while the man was asleep, and very slight exertion, or strain, would have been sufficient to bring about a rupture.”

8 Lord Loreburn at p.247 states:-

“An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health.”

9 These words were cited with approval by Lord Buckmaster in the late case of Partridge Jones & John Paton Ltd. v. James [1933] A.C. 501 where a workman while in the normal course of his work and while suffering from a heart disease died. The decision of the majority in the House of Lords in Clover's case has resulted in this curious position: If a man suffering from a serious aneurysm ruptures the aneurysm going upstairs in his own house, no one would say his death was due to an accident — was the aneurysm that killed him; but if he is (an employee) tightening a nut with a spanner and the aneurysm bursts, his death was, for; the, purposes of the Workmen's Compensation Act, an accident, Lord Atkinson in his dissenting judgment at p. 254 has this to say:-

“The death of the deceased was, it appears to me, no more an accident than if, had he boon a butler, he had died walking slowly up the stairs of the house in which he served, or had he been a coachman, he had died while slowly mounting to his box. It may possibly be that it would be better, in the; interest of workmen, that they should be entitled to compensation for all injuries which arise out of and in the course of their employment however caused, though that is far from clear, since it might result in depriving of employment all who were in any way unsound or past their prime.”

10 Lord Shaw of Dunfermline in his dissenting judgment at p. 257 put bluntly how he would decide the facts apart from authority:-

“… on these facts, I am of opinion that this workman did not die owing to injury by accident, but died of heart disease. There was nothing unusual or abnormal in the work, no strain ‘more than ordinary’...