Cooray v. Kartippala.
Present: de Krestser J.
COORAY v. KARUPPAIA.
S. C. 717/1938.
In re Appeal under Section 48 of the Workmen’sCompensation Ordinance.
‘Workmen’s compensation—Accident in course of employment—Burden ofproof—Circumstances attending accident—Inference of Commissioner—Ordinance No. 19 of 1934.
Where a workman was in a place in which his employment compelledhim to be and which brought him within proximity of the peril to whichhis death could properly be ascribed, and the Commissioner drew aninference that the death was an accident arising out of and in the courseof his employment,—
Held, that the finding of the Commissioner could not be set .asidemerely because the evidence was circumstantial and certainty as to howthe accident actually happened was unattainable.
Johnston v. London, Midland & Scottish Railway Co. (28 Butterworth’sWorkmen’s Compensation Cases 118) followed.
PPEAL from an order of the Commissioner under section 48 of theWorkmen’s Compensation Ordinance. The facts are fully stated
in the judgment. The question of law argued in appeal was whether her.inferences drawn by the Commissioner were justified by the facts proved.
S. Nadesan, for the appellant.—The appeal is on a question of law.Section 3 of Ordinance No. 19 of 1934 defines the liability of an employerto workmen for injuries. The injury must be caused by (1) accident, (2)arising out of, and (3) in the course of the employment.- The burden ofproving these three requirements is on the applicant, and there is nopresumption in favour of the applicant. (Barnabas v. Bershan CollieryCo.1; Craske v. Wigan1; MacDonald v.' Owners of the S.S. Banana*;Pomfret v. Lancashire & Yorkshire Ry. Co'; Lancashire & Yorkshire Ry.Co. v. Highley".)
The applicant in this case has not discharged this burden. There is noevidence for the finding of the Commissioner that the injury was causedby an accident arising out of the employment. There is nothing to showthe actual circumstances which led to the death of the deceased. TheCommissioner’s finding is based on mere conjecture.
On the evidence adduced it is equally probable that the deceasedcame by his death through some wilful act which was not incidental tohis employment.
S. J. C. Schokman, C.C., for the Attorney-General as amicus curiae,on notice.—The only point of law which arises is whether the inferencesdrawn by the Commissioner are justified by the proved facts of the case.It is not open to the appellant to dispute the Commissioner’s findings
on the facts.
»163 L. T. R. 613.a (1909) 2 K. B. D. 63d.
B (1917) Appeal Cates S6S.
a (1908) 2 K. B. D. 928.-« (1903) 2 S. B. D. 118.
DE KRETSER J.—Cooray v. Karuppaia.
In the absence of direct evidence of the cause of an accident resultingin the death of a workman it is open to a claimant for compensation todischarge the burden on him by means of circumstantial evidence. Onsuch evidence it is open to the Commissioner to draw an inference as tohow the accident was caused and make a finding as to whether it aroseout of and in the course of the employment.
In England the House of Lords in 1931 held after reviewing all theearlier authorities that in such a case an Appellate Court should notinterfere with the findings of the County Court or arbitrator who holdsthe inquiry unless the conclusion come to by the person holding theinquiry is such that no reasonable person could have come to such aconclusion. (Vide Fisher or Simpson now Johnston v. London, Midlandand Scottish Railway Company ) This principle was reiterated in a latercase in the House of Lords in which it was further stated that the opinionof the arbitrator should stand even though the appellate tribunal mighton the facts have reached a different conclusion. (Vide Davies v.Armstrong-Whitwgrth Aircraft, Limited'.)
In the case of Keely v. English Electric Co., Ltd.' the Court of Appealrefused to interfere. with the inferences drawn by the County CourtJudge even though he made slips regarding the evidence led for theemployer.
Cur. adv. vult.
June 12, 1939. de Kretser J.—
The deceased Kalimuttu was employed on Primrose estate and on theday of his death had been ordered to uproot illuk grass, and in order todo so he had been ordered by the kangany to look for illuk grass. In thecourse of doing so, he had to go down a hill which the Commissioner onvisiting the spot found had a gradient of between 45 to 60 degrees. Acompanion of the deceased had been talking to the kangany and when heleft he heard a cry of distress, ran up, and saw the deceased fallen on hisback and in contact with an electric wire. The man died and his widowclaimed compensation which was awarded to her by the Commissioner.
– The employer has no right of appeal on the facts and his appeal onpoints of law has been certified by a Proctor.
The Commissioner found that the deceased slipped and fell and socame in contact with the wire. It is conceded that the deceased metwith his death in the course of his employment and it is also concededthat if the Commissioner’s finding be accepted the accident arose out ofhis employment. -The point of law taken is that the Commissioner wasnot justified in coming to this conclusion even if he accepted the evidencefor the widow of the deceased.
For the appellant it is contended that where the actual circumstanceswhich led to the death are unknown, the Court is not justified in makingguesses. The onus is on the claimant to prove that the accident aroseout of and in the course of deceased’s employment. Barnabas v. BershanColliery Co.'; Crdske v. Wigan'; MacDonald v. Owners of the S.S. Banaiuf;Pomfret v. Lancashire & Yorkshire Ry. Co.7; Lancashire & Yorkshire Ry.Co. v. Highley' are quoted in support of this proposition.
» (1931) 24 B. W. C. G. 1.5(1909)2 K. B. D. 635.
(1933) 26 B. W. C. C. 299.6(1908)2 K. B. D. 92?.
(1935) 28 B. W. C. C. 118.1(1903)2 K. B. D. 718.
* 103 L. T. R. 518.» (1907)Appeal Gates 852.
DE KRETSER J.—Cooxay v. Karuppaia.
Crown Counsel, to whom 1 am indebted for appearing as amicus curiae,referred me to Keeley v. English Electric Co., Ltd.' and volume 24 ofthe same series, page 1, where we find the case of Fisher or Simpson nowJohnston v. London, Midland & Scottish Ry. Co. The latter is a decisionin 1931 by the House of Lords..
The main point made by Crown Counsel was that an Appellate Courtshould not interfere with a finding of the person authorized to hold theinquiry unless it was such that no reasonable person could have arrivedat that conclusion. Viscount Dunedin emphasized that “ each casemust be dealt with and decided upon its own circumstances, andinferences may be drawn from circumstances,justasmuchas results
may be arrived at from direct testimony ”. Hesaid,“ Imay begin with
stating two propositions as to which there is ncfw no controversy. Thefirst is that the questions of “ arising out of the employment ” and “ inthe course of the employment ” are two separate questions and mustboth, as well -as the fact that there was an accident, be made good by theclaimant. The second is that the finding of an arbitrator cannot beset aside unless it is either wrong in law, or ifit isa findingin fact, is
such as a reasonable man ought not to come to ”.Hewenton to say
that if the nian was in a place where his employment compelled him to bewhich place had an element of danger sufficient to account for the death,and the other possibilities had been nagatived by the inquirer who drewan inference that the death was an accident arising out of and in thecourse of employment, that was an inference that could not be set asidemerely because the evidence was merely circumstantial, and certaintyas to how the accident actually happened was unattainable ”.
He summed up as follows : —
“The result of the cases of unaccounted-for death seems to me to beas follows: If the deceased was in the course of his employment;..
. . if there are facts from which it may be deduced that' his employ-ment brought him within, or allowed him to be within proximity of,the peril to which his death could properly be ascribed, and the arbitratorcomes to the conclusion that the accident which causes death arises out of,as well as in the course of, his employment, his judgment should not bedisturbed. Secus, if he comes to the opposite conclusion ”.
Lord Tomlin expressed himself in a similar way. Lord Thankertonsaid the same thing : he quoted with approval Lord Robson’s statementthat “where a workman is killed in the course of his employment whileengaged in some act reasonably consistent with his master’s service,I think it requires some more definite evidence than the appellantscan suggest in this case in order to found the inference that he was movedby a wrongful intention. ”
Turning now to the present case, it cannot be said that the claimant’scase was not based on evidence, and by evidence one means not merelydirect oral evidence but also circumstantial evidence. I do not thinkit can be said th^t the Commissioner’s finding was merely a guess northat it was sudh that no reasonable person could have arrived at thesame conclusion.
> 28 Bultenoorth’s Workmen't Compensation Cases 118.
DE KRETSER J.—Cooray v. Karuppata.
We must remember that the Commissioner was on the spot and wouldunderstand things much more fully than we could merely from a perusalof the record. For example, he would know in which direction the wireran, whether it was across the path which the deceased was taking orwhether it ran alongside of him.
The fact that all that appellant’s Counsel could urge was that the wirehad been found to be about three feet above the ground and, therefore,if the deceased slipped and fell he could not have come in contact withthe wire, and that at the inquiry the only theory advanced was that thedeceased must have been carrying his mammoty over his head and insuch a way that the blade of it came in contact with the wire, the factthat only these two points were made indicate the only possible alterna-tives that could have been thought of.
With regard to the first, it is giving the Commissioner’s finding toolimited a meaning to say that he found that the wire was on the ground;for it is quite conceivable that when the man slipped and fell he grabbedinstinctively at what was nearest and that happened to be the wire-that was close to the ground.
In the second place, there is no justification for holding that the wirehad been three feet above the ground just before the man slipped, for theevidence is that he was seen fallen on his back and grasping the wire.By the time the Arachchi arrived the wire was not in his grasp and wasthen about three feet high. Clearly therefore there had been an inter-ference with the wire, probably with the idea of rescuing the man. It isquite possible that the wire which had been on the ground was raised to aheight of three feet.
With regard to the theory set up at the inquiry, this was rejectedby the Commissioner who doubted that the current would pass along thewooden handle of the mammoty. I share this doubt. There is a further'fact, that if such a thing had happened the man’s hand would have beengripped on the handle by the current and one cannot understand how thevery next moment he was seen grasping the wire. There is also the factthat if he had been carrying the mammoty elevated above his head,which is an unusual position to carry a mammo.ty in, with the fall of theman the mammoty would have been thrown or have fallen in a positiondifferent from that in which it was found, namely, with the blade closeto his ear. That indicates that the man was carrying his mammoty overhis shoulder in the position with which we are all familiar, and that whenhe fell the mammoty retained its position, more or less. Of course if hestumbled across the wire, or if the blade of the mammoty came in contactwith the wire accidentally as he walked alongside the wire, the case forthe appellant would not be improved.
I have said enough to show that, whatever may have been the actualmanner in which he came in contact with the wire, the man was killedin the course of his employment while engaged in an act reasonablyconsistent with his master’s service, and there is no justification to inferthat he was moved by a wrongful intention.
The Commissioner’s finding has not been shown to be unreasonable,and the appeal is therefore dismissed.
COORAY v. KARUPPAIA