012-NLR-NLR-V-59-D-OBEYESEKERE-Appellant-and-G.-JANE-NONA-Respondent.pdf
JET. X. G. FEBNAXDO, <7.—Obeyesekere v. Jane Kona
41
1957Present: H. N. G. Fernando, J-
D. OBEYESEKERE, Appellant, ani G. JANE NONA, RespondentS. C. 3—Workmen's Compensation C31141/54
M’orkmen's Compensation Ordinance—Section 3—“ Accident ”—Burden of proof
Quantum of evidence.
In the contoxt of Workmen’s Compensation law even an intentional anddeliberate injury can bo an “ accident ” in relation to the person injured.Murder, therefore, can bo an “ accident ” within the meaning of section 3 of theWorkmen’s Compensation Ordinance.
In an application for compensation under the Workmen’s CompensationOrdinance the burden of proving the conditions essential to the obtaining of anaward rests upon tlio applicant, and if ho leaves the case indoubt ns to whetherthose conditions are fulfilled or not, or where tho known facts aro equally con-sistent with their having been fulfilled or not fulfilled, ho has not discharged theonus which lies upon him.
Tho applicant’s husband had been employed as a watchor on an estate belong-ing to the respondent. He was murdered by somo unknown person poundinghim on his head with a blunt weapon while ho was sleeping alone in ahut on tho estate. Xo witness, however, was able to deposo to any of thocircumstances of tho murder of the deceased, and tho applicant’s statementthat tho deceased would not linvo been killed if ho had not been on the estatewas a mere conjecture as to the motive for his murder.
Held, that in view of the failure of tho applicant to establish the actual motivefor the murder there was no need to determine whether the injury on the deceasedwas incident to or causally connected with his employment.
A PPEAL under the Workmen’s Compensation Ordinance.Frederick ]V. Obeyesekere, for the respondent-appellant.
No appearance for the ajjplicant-respondent.
Cur. adv. vull.
June 14, 1957. H. N. G: Ferxaxdo, J.—
Upon the facts found in this case by the Assistant Commissioner, theapplicant’s deceased husband had been employed as a watcher on anestate belonging to the appellant, and was murdered at some time on thenight of 5th November 1954. It would appear that some person unknownhad severely pounded the deceased on his head with a blunt weapon and.killed him while he was sleeping alone in a hut on the estate. The onlyquestion which arose for decision on these facts was whether death resultedfrom personal injury by accident arising out of and hi the course of thedeceased’s employment as a watcher, and that question has been answeredin the affirmative by the Assistant Commissioner.
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H. N”. G. FERNANDO, J-—Obeyesehere v. Jane. Arono
A somewhat similar case which came lip in appeal was that of Krishna-kulty v. Maria Nona l. There the deceased had been employed as a nightwatchman on certain premises ; it was his custom to return home eachnight for a short period to have his dinner, and he was murdered onhis way to dinner on a highway which did not. form part of his emploj'er’spremises. It was held in appeal that he was on the highway for a purposeof his own and not in respect of any special duty which lie owed to theemployer and that therefore the accident did not arise out of and in thecourse of his employment. The Assistant Commissioner who decided thepresent case appears to have assumed that if the murder took place onthe premises in question, and not on the highway, the employer shouldhave been held liable, and on that basis has concluded that, since thedeceased watcher in the present case met his death on the appellant’sEstate, it would follow that the “ accident ” arose out of and in the courseof the employment. This in my opinion is a serious misconception and Iconsider it necessary to explain at some length the manner in whicheases of this nature should be examined.
In the first place I should point out that the English authorities clearlyestablish that the term “ accident ” in the context of Workmen’s Com-pensation Law has been construed in the wide sense of “ any unforeseen•and untoward event producing personal harm ”, and that even intentional•and deliberate injury can be an “ accident ” in relation to the personinjured. The contention that “ accident ” negatives the idea of intentionwas rejected by three Judges of the Court of Appeal in Nisbett v. Rayneand Burn 2. Reference was there made to two earlier cases, where anengine driver had been injured by a stone wilfully dropped on the engineby a boy, and where a gamekeeper had been attacked and wounded bypoachers. I would with respect adopt this interpretation and hold thatmurder can be an “ accident ” within the meaning of section 3 of theWorkmen’s Compensation Ordinance. But the question whether themurder or injury of an employee is an accident arising out of and in thecourse of the employment can receive different answers according to thecircumstances of each case.
The officers who decided this case and that of Krishnakutly v. MariaNona ? appear not to have realised adequately the fundamental pointthat an applicant for compensation under the Workmen s Compensationlaw has a burden of proof to discharge. In Pomfret v. Lancashire andYorkshire Railway Company 3 it was pointed out that “ the burden,and the whole burden, of proving the conditions essential to the obtainingof an award rests upon the applicant and on nobody else, and if he leavesthe case in doubt as to whether those conditions are fulfilled or not, wherethe known facts are equally consistent with their having beenfulfilled or not fulfilled, he has not discharged the onus whichlies upon him ”. The same matter was stated with emphasis by LordHalsbury in Barnabas v. Bersham Colliery Co., 4 when he said that propo-sitions must be proved in a Court of law by proof of evidence and that is
* (1949) 51 N. L. B. 66.- (1910) 2 K B. 6S9.
(1903) 2 K. B., 7IS.
(103) U.T. 513.
H. N. G. FERNANDO, J.—Obeycsckcre v. Jane Xona43
not satisfied by surmise, conjecture or guess. In that case a workmanhad an apoplectic seizure while he was performing his ordinary duties andthe medical evidence was that the arteries of the brain had degeneratedand were in such a state “ that they might rupture with slight exertionor with no exertion at all”; it was pointed out that the facts were•equally consistent with the conclusion that the seizure was caused byexertion at his work or with the negatiVe conclusion and that in that stateof evidence the applicant had not proved his case. Of course, as in anylegal proceedings, " proof does not mean proof to rigid mathematicaldemonstration because.that is impossible ; it must mean such evidenceas would induce a reasonable man to come to the conclusion as a factthat the employment was the cause of the death.-” The proof may befurnished " by direct evidence or by inference from facts, but the mattermust not be left to rest in surmise, conjecture or guess. ” Hawkins v.Hou-ells Tiileri/ Steam Coal Co. Ltd. 1 In the present case no witness wasable to depose to any of the circumstances of the murder of the deceased,■and his wife’s statement that he would not have been killed if he had notbeen on the estate was a mere conjecture as to the motive for his murder.The real question therefore is whether upon the bare facts which I haverecited above it is legitimate to draw any inference upon which liability■on the part of the emploj-cr can be property held to arise.
In Nisbelt’s case 2 the deceased had been employed as a cashier and inthe course of his duty was in the habit of carrying large sums of moneyby train to a colliery owned by his emploj'er. While he was travelling inthe train in the discharge of his duty, the bag of money was stolen fromhim and he himself was killed by shots fired from a revolver. The rele-vant finding of fact by the County Court Judge was that the robberyand the murder were committed because Nisbett carried the money inhis bag and on this fact the Judge held that the robbery was a risk inci-dental to the employment of carrying money about, and that accordinglyfor the purposes of the Statute the accident arose out of and in the courseof the employment. The Court of Appeal agreed with the conclusionthat there is a distinct and well known risk run by cashiers and the likewho are known to carry considerable sums in cash of being robbed andpossibly murdered and that such a risk is incident to their employment.What I consider to be important in the reasoning which founded thedecision in that case is that there two points had to be established:—(i)the reason for the murder, that is that hfisbett was murdered because hecarried his employers’ money ; and (ii) that the risk of robbery andmurder was an incident of the employment of a “ cash-carrying ” cashier.With regard to the first point, there was probably direct evidence ofrobbery, but even if the only evidence was that the cashier had beenattacked, robbed of the money and killed, there arose from that situationan almost irrebuttable inference even for the purposes of criminal pro-ceedings that the motive for the murder was robbery. Once this motivewas established, the Court had to consider the second point, namelywhether the risk of robbery was incident to the nature and conditions ofthe employment of a person whose duty it was to convey money by trainfor his employers.-
{1011) 1 K.B. OSS..
. * {1010) 2 K.B. 6S9.
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H. N- G-. FERNANDO, J.—Obeyesekere v. Jane Nona
That there are two steps in the reasoning is I think made clear by aconsideration of other important English decisions. In Alexander v.Dickinson 1 the deceased, who was employed as a watchman, had tooccupy a watchman’s cabin at the employer’s premises ; there was scsupply of gas at the cabin with two controlling taps ; the watchman wasfound dead one morning with the cabin door locked and the windowsclosed ; both gas taps were found open ; and the cause of death wasasphyxiation by gas. It was held that the workman was properly in thecabin in the course of his employment; that the cabin was a place towhich a risk attached by accidental or negligent manipulation of the tapsand that in these circumstances it -would be legitimate for a Judge, not-withstanding the absence of evidence as to the immediate circumstancesof death, to attribute the accident to the risk unless there was sufficientevidence of suicide. It seems to me that the first step in this reasoningwas the fact that the death was due to gas asphyxiation, and the secondstep that, since gas asphyxiation was in the circumstances a risk whichattached by reason of the gas taps in the cabin, the accident mightreasonably be said to have arisen out of and in the course of the employ-ment. If gas asphyxiation had not been shown to be the cause of death,the second point may either not have arisen for consideration or elsemay have had to be differently determined.
In Afiichison v. Day Brothers 2 which was a case of assault on the driverof a van at a time when he was in charge of the van, Buckley, L. J. pointedout that the question to decide is whether the occurrence is such thatthere has resulted personal injury by accident arising out of the employ-ment, thus rendering necessary a consideration of the circumstances of theoccurrence. While in straightforward cases, such as contact with machi-nery in a factor}', the reason for the “ occurrence ” may be more or lessobvious and not require explanation unless an employer seeks to offer one,the need to examine the reason for the occurrence seems to me alwayspresent in the case of physical violence deliberately caused. If not, anemployee, who deliberately provokes another to violence by insulting himin the course of a private argument, might claim that there was an“ accident ” ; in such an event, the question which (as Buckley L. J.points out) always arises, namely, whether there was an “ accident ” ornot, has obviously to be answered in the negative, and the further questionwhether there was an accident arising out of the employment does notarise at all.
The case before me is one in which the first of the two points (that is, thereason for the murder) has not been established. There are clearlytwo possible motives which can be reasonably .assigned for the murderof the deceased, namely (a) personal enmity, and (b) the desire to killhim because of his performance, or to prevent the performance, of hisduties as a watcher ; and in the absence of any evidence or circumstancesindicating that the latter was the real motive, the former one remainsat least equally possible, and the actual cause of the murderous assaultis left in doubt. . In a number of English cases of assaults upon employeesin which compensation has been awarded, the motive was never in doubt
‘(7935) 3 A.E. H.-204.
(1913> 1 K.B. C03.
H. X- G. FERXAXDO, J.—Obeycsckere v. Jane Xona4.>
but was dearly established, either by evidence or by circumstances fromwhich the motive could quite easily be inferred, and the awards were.ultimately made because the risk of assault from such a motive as thatestablished was considered incident to the nature of the employment.Thus in Smith v. Stepney Corporation 1 it was clear that the workmanwho was an attendant at a public lavatory was assaulted by a drunkensailor because the attendant demanded payment of the penny which wasthe usual charge for the use of the lavatory. Again in an Irish case whichis referred to in the judgment in Nisbett’s ease, three poachers had attackeda gamekeeper, a circumstance which even without further evidence amplyjustified the conclusion that the motive for the assault'was connected withpoaching. And, as I have already pointed out, the motive was in nodoubt whatsoever in the case of tlie murdered cashier Nisbett.
The importance of first fixing the motive for the assault, before pro-ceeding to inquire whether the injury was one by accident arising out of theemployment, is made clear if we were to consider the case of Nisbettwith a variation in the facts. Suppose for example that Nisbett wastravelling in the train on the business of his employer in order to inspecta colliery, but that he was known to be a successful gambler who carriedon his person large sums in cash for the purposes of betting : if he had beenattacked and robbed while travelling in the train, the motive for theattack would have been the robbery of cash known to be his own and notthat of his employer. If that motive was established, then clearly itcould not have been held that the risk of assault with that moti%*e wasincident to his employment. While the Court readily inferred that therisk of assault and robbery was an incident or risk attaching to the em-ployment of a travelling cashier, no inference of any such risk couldreasonably be drawn in the case of air employee whose duties do notinvolve the conveyance of cash.
In Holden v. Premier Waterproof and Rubber Co. 2, an emploj-ee wasmurdered by a fellow workman in the premises of the employer audit wasclear that the assault took place at a time during which the employee wasengaged in his duties as such. But it was proved that the “ reason ” forthe murder (if X may call it such in the circumstances) was that the fellowworkman had suddenly been seized with homicidal mania. The Courtheld that, although there was an “ accident ” which arose in the courseof the employment, the risk of such an assault was not one attached to theemployment and the accident did not arise out of the employment. Thejudgments on this latter point are both able and instructive, but forpresent purposes the important feature is that it was necessary beforedealing with that important and difficult point, first to form a conclusion,upon the evidence, as to the circumstances of the -assault. Withoutsuch a conclusion, there would have been no material upon which todecide whether or not the accident arose out of the employment.
I would hold that if the motive for an assault cannot be establishedby an applicant according to the ordinary modes of proof, whether uponevidence or proper inference from circumstances, the case does not reach 1
1 22 Butter-worth—Workmen's Compensation Cases p. 451.
* 144 L. T. 519 <b 2 B. W.C.C. 4GO.
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L. W. de SILVA, A.J.— lVarli-s v. Scott
the stage where the need arises to determine whether or not the injury wasincident to or causally connected with the employment. In this viewof the matter the inability of the applicant to establish the actual motivefor the murderous attack on her husband is conclusive of the case. Iwould therefore allow the appeal and set aside the award of compensationand of costs made by the Assistant Commissioner.
Appeal allowed.