089-NLR-NLR-V-62-VALLIAMMA-Applicant-and-TRAFFORD-HILL-RUBBER-ESTATES-LTD.-Respondent.pdf
468 T. S. FERNANDO, J.—Vallianvma v. Trafford HiU Rubber Estate Ltd.
1960Present : T. S. Fernando, J.VALLIAMMA, Applicant, and TRAFFORD Tm 1 ,T. RUBBER
ESTATES LTD., Respondent
iS. C. 1—Workmen's Compensation Application G3j75j58
Worfciibcn's Compensation Ordinance (Gap. 117)—Section 3—Injury suffered by
workman—“ Arising out of his employment
A Tamil labourer who was employed in a rubber estate was engaged in hisordinary Work on 29th Hay, 1958, in one of the divisions of the estate Whichwas situated in an area, where, on that date, there was tension due to unprece-dented racial enmity botwoon the Tamils and the Sinhalese. At about 3 p.m. agang of Sinhalese villagers came on to that part of the estate in which tho Tamillabourer was working alone by the side of a road and inflicted injuries on himwhich resulted in his death within a few hours.
Held, that the accident which rosulbod in tho death of the workman couldnot bo rogarded os arising out of his employment within the meaning of section3 of the Workmen’s Compensation Ordinance.
T
-1- HIS was a reference to the Supreme Court under section 39 of theWorkmen’s Compensation Ordinance.
3. C. Crossette-Thambiah, for the applicant.
No appearance for the respondent.
R. de Fonseka, Crown Counsel, as amicus curiae on notice fromCourt.
Cur. adv. vuit.
September 13, 1960. T. S. Fernando, J.—
The Commissioner for Workmen’s Compensation has, in terms ofsection 39 of the Workmen’s Compensation Ordinance (Cap. 117) sub-mitted for the opinion of this Court the question whether the accidentwhich resulted in the death of a workman in the circumstances set outhereunder can be regarded as arising out of his employment within themeaning of section 3 of the Ordinance.
The deceased Ponniah was a Tamil and a labourer on Trafford HillRubber Estate and was working on 29th May, 1958, in one of the divisionsof the estate. The estate is situated in Galagedera, one of the manyareas in which at this time there was tension due to unprecedented racialenmity between the Tamils and the Sinhalese with resulting disturbancesinvolving physical violence and damage to property. At about 3 p.m.on this day a gang of Sinhalese villagers came on to that part of theestate in which the deceased was engaged in his ordinary work and sub-jected him to an assault causing injuries on him, which injuries resultediu his death within a few hours.
T. S. FERNANDO, J—Valliamma. v. Trajjord. Hill Rubber Estate Ltd. 469
The Commissioner is apparently satisfied that the injuries to theworkman were caused by an accident arising in the course of his em-ployment, but invites the opinion of this Court on the remaining questionwhether the accident was one arising out of his employment.
It would have been useful for my present purpose if the facts relatingto the accident had been inquired into by the Commissioner in greaterdetail, but Mr. Crossette-Thambiah who argued the matter before me onbehalf of the applicant with conspicuous fairness stated that Ponniahhad been directed by the conductor of this estate to do the work of“ forking ” the earth close to one of the roads running by the estate.No other labourer was working close to him at the time. While engagedin his work, he was unfortunate enough to be espied by some Sinhalesevillagers who were out that day to assault Tamils and who happened tobe going along the road close to where Ponniah was working. The.villagers came on to the estate, got hold of Ponniah and subjected him tothe beating which proved fatal. It was not suggested that either Ponniahor the conductor who allocated work to him was aware of any risk ofattack by the Sinhalese on the Tamils working in the estate that day. Inanswering the question submitted to this Court I shall consider the state-ments made by Mr. Crossette-Thambiah as supplementing the admittedfacts.
The meaning of the expression “ arising out of his employment ”appearing in legislation relating to Workmen’s Compensation has been thesubject of much judicial comment, but the multitude of cases on thesubject only serves to emphasize the difficulty of applying the principlesto be gleaned therefrom to the particular facts of a given case.
“Nothing can come * out of the employment ’ ”, said Buckley, L.J. inMitchinson v. Day Brothers 1, which has not in- some reasonable sense itsorigin, its source, its causa causans in the employment. That the injurymust be one resulting in some reasonable sense from a risk incidental tothe employment has I think been decided over and over again ”. LordAtkin in Brooker v. Thomas Borthwick <5s Sons (.Australasia) Ltd.2, dealingwith this point stated :—
“ The principle which emerges seems to be clear. The accidentmust be connected with the employment : must arise “ out of ” it.If the workman is injured by some natural force such as lightning, theheat of the sun, or extreme cold, which in itself has no kind of connec-tion with employment, he cannot recover unless he can sufficientlyassociate such injury with his employment. This he can do if he canshow that the employment exposed him in a special degree to sufferingsuch an injury. But if he is injured by contact physically with somepart of the place where he works, then, apart from questions of hisown misconduct, he at once associates the accident with his employ-ment and nothing further need be considered. So that if the roofor walls fall upon him, or he slips on the premises, there is no needto make further inquiry as to why the accident happened i
i L. R. {1913) 1 K. B. 608.
*(1933) A. C. 676
470 T. S. FERNANDO, J-—Valliainma. v. Trafford Hill Rubber Estate Eld.
and again at page 678 :—
“ Their Lordships* attention was drawn to various decisions incases in which workmen were injured by bombs and shells from bom-bardment during the war. They do not refer to them in detail, forthey appear to confirm the conclusions which their Lordships havereached. Neither bombs nor shells have ordinarily anything to dowith a workman's employment. It is therefore necessary to showspecial exposure to injury by them. They represent exactly for thispurpose the operation of such forces as lightning, heat or cold.”
I am grateful both to Counsel for the applicant and to Crown Counselwho appeared at the instance of this Court for the assistance they havegiven me in regard to reported decisions bearing on the question thathas been submitted to this Court. Mr. Crossette-Thambiah, while franklystating the difficulties in his way, sought to bring the case of this workmanwithin the statute by contending that he was exposed to danger byreason of his having been compelled to work alone and unprotected inproximity to the road where he was an obvious target for the rioters asdistinguished from the case of the other Tamil labourers who were innumbers in the middle of the estate well out of sight from the road andwho thereby escaped assault that day. This is similar to an argumentaddressed to Wijeyewardene, J. and rejected by that learned judge inCharles Ajypvu v. Controller of Establishments•1. Reliance was there placedby counsel on what may be termed the fourth proposition contained in thejudgment of Russell, L.J. in Lawrence v. George Mathews 1924) Ltd? :—
“ Sufficient causal relation or causal connection between the accidentand the employment is established if the man’s employment broughthim to the particular spot where the accident occurred, and the spotin fact turns out to be a dangerous spot. Lf such a risk is established,then the accident “ arises out of ” the employment, even though therisk which caused the accident was neither necessarily incident tothe performance of the man’s work, nor one to which he was abnormallysubjected.”
What was meant by a dangerous spot in the passage reproduced abovewas explained by Lawrence, L.J. in Holden v. Premier Waterproof andRobber Co. Ltd? (a decision of the Court of Appeal of England in whichit was held that the risk of being attacked by a madman did not arise outof the employment either by reason of the duties performed by theworkman concerned or by reason of the locality in which they wereperformed) when he observed that—
“ I think it is plain that what is meant by a dangerous spot in thisconnection is a spot which owing to its locality is in fact inherentlydangerous although the danger may be a linking danger and not knownto any one, such as a wall with a bad foundation which may collapse—
1 11946) 47 N. L. R. 464.
3 [1930) 23 B. W. G. C. 471.
2 (1929) 1 K. B. D. 19.
JPedrick v. Mendis
471
a tree which may fall ; it does not mean that because the accidenthappened at a particular spot, and because the workman did in factincur danger at that spot, that therefore it was a dangerous spotwithin the fourth proposition. *
There was nothing inherently dangerous, in this sense, in the placewhere Ponniah happened to be working at the time the villagers attackedhim. The motive for the attack was obviously that Ponniah was aTamil. The risk of Ponniah being beaten up because he was a Tamilwas not, in my opinion, one reasonably incidental to his employment as alabourer on this estate or one which had any kind.of connection orassociation with his employment.
I would therefore answer in the negative the question submitted by theCommissioner whether the accident which caused the death of theworkman arose out of his employment.
There will, of course, be no costs of this proceeding.
Commissioner's question answered in the negative.