019-SLLR-SLLR-1981-2-THE-STATE-DISTILLERIES-CORPORATION-v.-MARY-NONA.pdf
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State Distil lariat Corporation k Mary Nona
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THE STATE DISTILLERIES CORPORATION
v.MARY NONA
COURT OF APPEAL.
RATWATTE, P. AND TAMBIAH, J.
C. A. 3/79 – WORKMEN’S COMPENSATION C3/G/7/78.JANUARY 21. 1981.
Workmen's Compensation Ordinance (Cap. 139), section 3—Death of workman owingto heart attack —Employed as lorry driver working long hours —Medical evidence—Whether "accident" arising out of and in the course of his employment.
The deceased workman who was a lorry driver employed by the appeHant-Corporationdied of an heart attack in the course of his employment. According to the medicalevidence the heart attack was sudden and it was possible that the long hours of drivingwhich the workman had done could have contributed to heart disease. It was submittedon behalf of the appellant that the Deputy Commissioner of Workmen's Compensationhad misdirected himself in law in holding that the workman's death was due to an"accident arising out of" his employment.
Held
In die light of the medical evidence that lorry driving being strenuous workcauses tension and that long hours of driving can cause heart disease and in the absenceof evidence that the workman even without being engaged on such work would nonethe less have died of heart attack, it was reasonable to conclude that the work he wasengaged upon brought about his death. The workman's death was therefore due to an"accident" within the meaning of section 3 of the Ordinance arising "out of" hisemployment.
Cases referred to
{11 Clover Clayton & Co. /. Hughes, (1910) A. C. 242.
Mailenthi Nona v. Peiris de Silva & Co. (1952) 54 N.L.R. 188.
Fenton v. Thorley, (1903) A.C. 443.
Charles Appu v. The Controller of Establishments, (1946) 47 N.L.R. 462; 33C.L.W. 24.
APPEAL from the Workmen’s Compensation Tribunal.
Lyn Weerasekera, for the appellant.
O Palliyaguru for the respondent
Cur adv. wit.
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Sri Lanka Lm Reports
(1981)2 S.L.R.
March 3.1981.
TAMBIAH, J.
This is an appeal against an award of compensation by the DeputyCommissioner for Workmen's Compensation.
The deceased workman was a lorry driver employed by theappellant-corporation. He joined the Corporation on 7.1.75. Atthe time of his death, he was just over 56 years of age. Theappellant-Corporation, at the inquiry, admitted that Albert died ofa heart attack in the course of his employment on 24.3.78.
According to the Assistant Regional Manager of the Corporation,the duty hours of the deceased were from 8 a.m. to 5 p.m., butgenerally the drivers work from 8.30 a.m. to 6.30 p.m. Thedeceased has worked on Saturdays and Sundays and on somePoya-days too. He had worked on 23.3.78 from 8.30 in themorning to 8.30 p.u. On 24th March, 1978, he commenced workat 8 a.m.
The witness stated that the Corporation was unaware whetherthe deceased had any previous heart ailment. The deceased hadtaken 5 days sick leave in 1975, 6 days medical leave in 1976 and1 day sick leave in 1978, but it was not on account of any heartdisease; it was for some stomach ailment. On 9.2.77, he was55 years and reached the age of retirement; on his application on20.12.76, his services were extended. The Corporation would nothave extended his services, if he was a heart case.
Dr. Tissera performed the postmortem on the deceased on
at 2.30 p.m. According to him, the deceased died of anobstruction of blood clot on the left coronary artery. He mentionedseveral matters that could cause the blood clot—age, size of thebody, food, drinking and smoking habits, tension, family burdens,mental condition, type of work, whether sedentary or hard,pre-existing diseases like diabetes, hypertension, etc. But he alsoadded, that long hours of driving is strenuous work for drivers;it causes tension and can cause heart disease. The driving of thelorry could have contributed to the blood clot. The doctor wasunable to say whether the deceased had a previous heartcondition. He stated the heart attack was sudden. The deceasedwas a well-nourished man and there was no smell of liquor in thecontents of his stomach.
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Upon these facts, the Deputy Commissioner has held that theemployment of the deceased contributed to the death of thedeceased and has awarded to the respondent, the widow, a sum ofRs. 12,900 as compensation and Rs. 105 as costs.
In arriving at his decisipn, the Deputy Commissioner was guidedby the test laid down by Lord Loreburn, L. C. in Clover Clayton &Co. y. Hughes^). In this case a workman suffering from anadvanced aneurism of aorta was doing his work in the ordinaryway by tightening a nut with a spanner. This ordinary straincaused a rupture of the aneurism, resulting in his death. Inconsidering whether the rupture arose out of the employment,Lord Loreburn, L.C. stated at p. 281:
"It may be that the work has not, as a matter of substance,contributed to the accident, though in fact the accidenthappened while he was working. In each case the arbitratorought to consider whether, in substance, as far as he can judgeon such a matter the accident came from the disease alone, sothat whatever the man had been doing it would probably havecome all the same, or whether the employment contributed toit. In other words, did he die from the disease alone or from thedisease and employment taken together, looking at it broadly?Looking at it broadly, I say, and free from over nice conjectures:Was it the disease that did it or did the work he was doing helpin any material degree?"
The test laid down by Lord Loreburn, L.C. was cited with approvalby Rose, C. J. in Mailenthi Nona v. Peiris & de Silva & Co. (2).In this case too the deceased workman, a carpenter by trade, whowas suffering from a fatty degeneration of heart, died while beingengaged upon his work and the question that arose was whetherdeath was due to the disease alone or whether the employmentcontributed to it.
It seems to be that the Deputy Commissioner has erred inapplying the test laid down by Lord Loreburn, L.C. in Hughe'scase to the facts in the present case. In the 2 cases cited above, theworkmen met with their death whilst at work, but each of themhad a pre-existing disease. There is no evidence that the deceasedworkman had any previous heart ailment and the doctor's opinionis that it was a sudden heart attack.
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Sri Lanka Law Reports
(1981) 2 SLR.
The question that the Deputy Commissioner had to decide waswhether the deceased workman's case fell within the ambit ofsection 3 of the Workmen's Compensation Ordinance. Twoquestions arise for determination under this section-
{1) whether the workman's death was caused by an "accident",and
(2) whether the accident is one that arose "out of" hisemployment and in the "course of " his employment.
Learned counsel for the appellant-Corporation submitted that theDeputy Commissioner had misdirected himself in law in holdingthat the workman's death was due to an "accident arising out of"his employment.
In Fenton v. Thorley (3), where the House of Lords held thata rupture caused to a workman by over-exerting himself in turninga wheel, was an accident. Lord Macnaghten, at p. 448, defined an"accident" as "an unlooked for mishap or an untoward event,which is not expected or designed." The other Lords who partookin the decision in the case, agreed in substance with LordMacnaghten's definition of "accident" in his speech. I find nodifficulty in coming to the finding that the workman's death wasdue to an "accident" within the meaning of section 3 of theOrdinance.
The appellant-Corporation conceded that Albert died of a heartattack in the course of his employment. The only matter thatremains to be decided is whether the heart attack arose "out of"his employment.
The words "out of" involve the idea that the accident arises outof a risk incidental to the employment The question is whetherthe nature of the employment was such that the likelihood of aheart attack was connected with and incidental to the employment,(see Charles Appu v. The Controller of establishments, (4) ).
There is no evidence that the deceased workman had apre-existing heart disease. There is also no evidence that by reasonof his bulky body or of his food, drinking and smoking habits orof mental stress and strain or of pre-existing disease like diabetes,hypertension, etc., he was a person prone to a heart attack. Butthere is evidence that lorry drivers of the Corporation generallywork from 8.30 a.m. to 6.30 p.m. and that the deceased workman
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had worked on Saturdays, Sundays, and on some Poya-days too.Even the day before he died, he had worked from 8.30 a.m. to8.30 p.m. The medical evidence is that lorry driving is strenuouswork, it causes tension and that long hours of driving can causeheart disease. In the absence of evidence to show that evenwithout the work this workman was engaged on, he, none the less,would have died of a heart attack, it is reasonable for me toconclude that the work he was engaged upon, brought about hisdeath.
The appeal is dismissed with costs fixed at Rs. 315.
RATWATTE, P.—l agree.
Appeal dismissed.