Workmen's Compensation Board v. Theed

Workmen's Compensation Board v. Theed
Collection
Supreme Court Judgments
Date
1940-06-29
Report
[1940] SCR 553
Judges
Crocket, Oswald Smith; Davis, Henry Hague; Kerwin, Patrick; Hudson, Albert Blellock; Taschereau, Robert
On appeal from
New Brunswick
Subjects
Labour law
Decision Content
Supreme Court of Canada
Workmen's Compensation Board v. Theed, [1940] S.C.R. 553
Date: 1940-06-29
The Workmen's Compensation Board Appellant;
and
Helen Elizabeth Theed Respondent.
1940: May 8; 1940: June 29.
Present: Crocket, Davis, Kerwin, Hudson and Taschereau JJ.
ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK APPEAL DIVISION
Workmen's Compensation Act—New Brunswick statute of 1932, c. 36, section 7—Injury sustained by a girl stenographer operating embossing machine—Whether an "accident" within the meaning of the Act.
The respondent was employed as a stenographer in the credit department of Irving Oil Company, Limited, at Saint John, N.B., from March, 1938, until the end of March, 1939. In December, 1938, in the course of her employment, she was asked to operate a new hand-embossing machine for making addressograph plates. The first morning she operated it she complained to the office manager that the machine was too heavy for a girl to operate, and that the first night she noticed a sore spot in her back, notwithstanding which she operated the machine again the next day. About two weeks or so later, she was again called upon to operate the machine and did so for two days or so. In the meantime, while employed about other office work, the sore spot continued. In consequence of her condition, she consulted several doctors and eventually had to undergo an operation. Section 7 of the New Brunswick Workmen's Compensation Act, ch. 36 of 1932, reads as follows: "When personal injury or death is caused to a workman by accident, arising out of and in the course of his employment in any industry within the scope of this part, compensation shall be paid to such workman or his dependents, as the case may be, as hereinafter provided * * *." On June 5th, 1939, the respondent applied to the Workmen's Compensation Board for compensation. The Board disallowed the claim on the ground that there was not sufficient evidence that the injury claimed for had been caused by an accident. On the submission of a further statement, the Board held an investigation with the result that the Board, upon a reconsideration of the entire case, made a new ruling and found: "1. That the personal injury of which the appellant (now respondent) complains arose out of and in the course of her operating their embossing machine in her employment within the scope of Part I of the said Act (The Workmen's Compensation Act, 1933, ch. 36 and amendments); and 2. That the said injury was not caused by accident." The respondent having obtained permission to appeal to the Appeal Division of the Supreme Court of New Brunswick, that Court allowed the appeal and held that the injury caused to the respondent was caused by accident within the meaning of the Workmen's Compensation Act.
Held, affirming the judgment of the appellate court (14 M.P.R. 499), that the personal injury, which the respondent suffered in the course of her operating the machine, was an accidental injury within the meaning of the statute. APPEAL from the judgment of the Appeal Division of the Supreme Court of New Brunswick[1], by special leave to appeal granted by that Court, reversing the decision of the Workmen's Compensation Board, which had disallowed the respondent's claim for compensation under the Workmen's Compensation Act of New Brunswick.
The material facts of the case and the questions at issue are stated in the above head-note and in the judgments now reported.
J.J. F. Winslow K.C. for the appellant.
D. King Hazen K.C. for the respondent.
Crocket J.—The respondent was employed as a stenographer in general office work in the credit department of the head office of the Irving Oil Co., Ltd., at Saint John, N.B., from March, 1938, until the end of March, 1939. In December, 1938, in the course of her employment she was asked to operate a new hand-embossing machine for making addressograph plates. The machine, which worked stiffly at first, was operated by means of a lever, which required considerable exertion to make an impression. It was operated by different employees in the office as the occasion for making up new addressograph plates arose, and the credit manager admitted that he had complaints from other lady operators besides Miss Theed that it tired their muscles to operate it, explaining that its operation required the use of muscles not ordinarily used and that it would be liable to cause soreness in those muscles until they became accustomed to it. Miss Theed herself testified that the first morning she operated it she complained to the office manager that the machine was too heavy for a girl to work, and that the first night she noticed a sore spot in her back, notwithstanding which she operated the machine again the next day. It was about two weeks before she was called upon to operate it again and she did so for two days or so. In the meantime while employed about other office work the sore spot kept about the same and she consulted an osteopath, who told her she had twisted a rib and gave her about eleven treatments. Her condition showing no improvement, she obtained leave of absence and went to Montreal where she consulted Dr. Shannon, who told her she had torn some ligaments and would have to have operative treatment. Returning to Saint John, Dr. George F. Skinner operated on her on July 25th, 1939, and, having in the meantime secured a new position as secretary at the Rothesay Collegiate School, she was able to take up her work there on September 1st. Dr. Skinner, when asked to explain the nature of the injury, for which he had operated, described it as one of those soft tissue injuries that is really indefinable, and which, for lack of a better term, would come under the group of sprains and strains. There was, he said, apparently constant tenderness and constant pain over the spine at the eighth thoracic vertebra. Dr. Shannon, Dr. Skinner said, had previously demonstrated this numerous times and found her condition just as Dr. Skinner described it with a tenderness over this point on movement. The operation disclosed nothing more than what one might call thickening of the fibrous tissue of the region; that was again one of the rather indefinite undefinable things that they had to face in sprains and strains. Right over the spinous process the tissues were so thickened that he had a sensation of cutting through a definite bursa. Injury like that he described as tears in the ligaments. Dr. Shannon had instructed him to operate. Dr. McKay, who had been called in consultation and assisted at the operation, agreed that the only way they could define the injury was that the fibrous ligamentous attachments to that particular bone had been strained and in healing they had healed so as to give abnormal tensions. In the operation all the muscles and ligamentous attachments were freed from that part of the bone and the spinous process itself was removed.
On June 5th, 1939, the respondent applied to the Workmen's Compensation Board for compensation. The Board disallowed the claim on the ground that there was not sufficient evidence that the injury claimed for had been caused by accident. On the submission of a further statement the Board held an investigation upon which the claimant, Dr. Skinner and other witnesses were examined and cross-examined by counsel with the result that the Board, upon a reconsideration of the entire case, altered its prior ruling and found
1. That the personal injury of which the appellant complains arose out of and in the course of her operating the embossing machine in her employment within the scope of Part I of the said Act (The Workmen's Compensation Act, 1933, ch. 36 and amendments).
2. That the said injury was not caused by accident.
The respondent having obtained an order from a judge of the Supreme Court permitting her to appeal to the Appeal Division of the Supreme Court of New Brunswick on the question of law involved, that court unanimously allowed her appeal and on the application of the Board granted special leave to appeal to this court, Baxter C.J. dissenting as to the allowance of special leave.
Section 7 of the New Brunswick Workmen's Compensation Act reads as follows:
When personal injury or death is caused to a workman by accident, arising out of and in the course of his employment in any industry within the scope of this Part, compensation shall be paid to such workman or his dependents, as the case may be, as hereinafter provided, unless such accident was, in the opinion of the Board, intentionally caused by such workman, or was wholly or principally due to intoxication or serious and wilful misconduct on the part of the workman, or to a fortuitous event unconnected with the industry in which the workman was employed.
It will be seen from what I have already said that the only issue upon this appeal is as to whether the personal injury, which the applicant admittedly suffered in the course of her operating the machine, and which the Board expressly found arose out of and in the course of her doing so in her employment within the scope of Part I of that Act, was "a personal injury caused by accident within the meaning of the above section." In my opinion we are bound to hold that it was. That that injury consisted of the straining of the muscles of; her back and the tearing of the ligamentous attachments to the eighth thoracic vertebra, causing pain and a distinct sore spot in that region, admits of no doubt. This was demonstrated beyond cavil by the operation which became necessary for its relief.
Decisions of the House of Lords in a long line of cases from 1903 to 1935, it seems to me, are conclusive that such an injury as that described is an accident within the meaning of the provisions of the English Workmen's Compensation Act and of the corresponding New Brunswick Act imposing liability for "personal injury by accident arising out of and in the course of" the employment of the injured person.
In Fenton v. Thorley[2], it was held that the word "accident" in this enactment is used in the popular and ordinary sense, and means a mishap or untoward event not expected or designed, and that a workman who in the turning of the wheel of a machine during the course of his employment over-exerted himself and thereby sustained an internal rupture, suffered an injury by accident within the meaning of the statute. Lord Macnaghten in delivering the leading judgment in that case referred to a decision of the Scottish Court of Session in Stewart v. Wilsons & Clyde Coal Co. Ltd.[3], in which he said he agreed entirely. That was a case where a miner strained his back in replacing a derailed coal hutch and in which all the learned judges of the Court of Sessions held that it was an accident in the sense of the Act.
What the miner did in replacing the hutch (Lord Macnaghten said) he certainly did deliberately and in the ordinary course of his work. There was nothing haphazard about it.
Lord M'Laren of the Scottish Court said he considered that
if a workman in the reasonable performance of his duties sustains a physiological injury as the result of the work he is engaged in * * * this is accidental injury in the sense of the statute.
Lord Kinnear observed that the injury was not intentional and that it was unforeseen.
It arose (he said) from some causes which are not definitely ascertained except that the applicant was lifting hutches which were too heavy for him. If (he added) such an occurrence as this cannot be described in ordinary language as an accident, I do not know how otherwise to describe it.
Lord Macnaghten observed that Fenton was a man of ordinary health and strength; that there was no evidence of any slip or wrench or sudden jerk; and that it might be taken that the injury occurred while the man was engaged in his ordinary work and in doing or trying to do the very thing which he meant to accomplish. He also said that the Court of Appeal in sustaining the decision of the arbitrator that there was no injury by accident within the meaning of the Act had followed an earlier decision of that court in Hensey v. White[4], (which Lord Macnaghten said was in its circumstances not distinguishable from the case he was then considering) that there was no accident because there was "an entire lack of the fortuitous element." This, he pointed out, was not necessary to constitute an accident, and he added:
If a man in lifting a weight or trying to move something not easily moved, were to strain a muscle or rick his back or rupture himself, the mishap in ordinary parlance would be described as an accident.
Lords Shand, Davey, Robertson and Lindley all agreed that the decision of the County Court Judge and of the Court of Appeal refusing compensation for the internal rupture should be reversed, Lords Shand and Davey concurring in the reasons of Lord Macnaghten and Lords Robertson and Lindley delivering judgments of the same purport. The latter, referring to the Scottish decision in Stewart v. Wilsons & Clyde Coal Co.[5], said that the interpretation put upon the Act in Scotland in that case
is to be preferred to the narrower construction occasionally adopted in this country.
Fenton v. Thorley [6] has ever since been treated as the leading case upon the meaning of the word "accident," as it appears in the Workmen's Compensation Act. The principles there enunciated have ever since been consistently recognized by the Law Lords of the House. They subsequently held that infection developing from the entry of a bacillus into the eye of a workman from wool he was sorting was an injury by accident, as in Brintons Ltd. v. Turvey[7]; and that a strain suffered by a workman through exertion in the course of his employment is itself an accident, as in Clover, Clayton & Co. v. Hughes[8].
In Glasgow Coal Co. v. Welsh[9], a miner was bailing out water from the bottom of the pit, which necessitated his standing up to his chest in water for eight hours with the result that thereafter and for two or three days he felt great stiffness and cold and pain in his joints and contracted sub-acute rheumatism. The arbitrator in this case found that the rheumatism was caused by the extreme and exceptional exposure to cold and damp. Viscount Haldane and Lords Kinnear, Shaw of Dunfermlin, Parmoor and Wrenbury all held that it was a case of injury by accident. The first two Law Lords named distinctly held that the judgment in Fenton v. Thorley[10] was conclusive.
Innes or Grant v. Kynoch[11] was the case of a workman's death from blood-poisoning, caused by his becoming infected through an abrasion on his leg by noxious bacilli contained in bone-dust which the deceased handled in the course of his employment. It did not appear when or how he received the abrasion, and it was impossible to say with certainty when the infection occurred. Lord Birkenhead, L.C., and Lords Buckmaster, Atkinson, Parmoor and Wrenbury all held that the fortuitous alighting of the bacilli upon the abraded spot constituted an accident within the Act; that there was evidence upon which the arbitrator was entitled to find that the injury arose out of and in the course of the deceased's employment; and that the provisions of the Act as to fixing the date of the accident are satisfied, if, having regard to the nature of the particular injury alleged, the date of the occurrence of the accident is reasonably fixed so as to connect the injury with the accident.
In Burrell v. Selvage[12], a girl worked for the respondents at a lathe, finishing shell adaptors, and in the course of that work constantly sustained cuts and scratches on her hands. In March, 1918, she showed symptoms of blood-poisoning from the pus formed in gatherings caused by the cuts. She continued to work until April 27th, during which time further cuts and scratches were caused. By that time the poisoning had so got into her system that she had to stop work and became totally incapacitated from arthritis. The arbitrator found that the last cut of April 27th was an accident, and that the incapacity thus resulted from injury by accident arising out of and in the course of the employment. The Court of Appeal affirmed his decision and the employers appealed to the House of Lords. Lords Buckmaster, Sumner, Parmoor, Wrenbury and Carson all held that, although there was no evidence to support the finding that the incapacity resulted from the wound on April 27th, there was conclusive evidence that it resulted from the accumulative effect of the series of accidents met with at her work, and that it was impossible to hold that because the incapacity was caused, not from a particular accident, but from a series of accidents, that that fact prevented the applicant from recovering compensation. In his reasons Lord Buckmaster said:
In the present case there is no dispute that the disease from which the respondent suffered, is a disease which distinctly arose out of the injuries that she received while in the course of her employment, and it cannot be disputed that her cut and abrased fingers were on each occasion what would be called an accident within the meaning of the statute. The only question, therefore, for consideration is whether, when the disease is due, not to one specific and definite accident, but to a series of accidents, though its actual influence on the resulting illness cannot be precisely fixed, the workman is disentitled to the benefit of the statute.
My Lords, I cannot find any words in the statute which permit of such a construction. In the present case personal injury was suffered, it was suffered by accident, and the accident is no less accidental because it occurred on a series of occasions instead of on one; it follows that the claim to compensation was properly established.
I shall mention only one other of the House of Lords decisions, that of Walker v. Bairds[13]. In this case the workman, who was employed as an underground fireman in a colliery, was cleaning out a sump into which water had collected and for which purpose it was usually necessary to stand in cold water about waist-deep. On coming out on one occasion it was noticed that he was shivering; he contracted a chill, which within a short time developed into broncho-pneumonia from which he died. The arbitrator drew the inference that the broncho-pneumonia was caused by a chill, which he contracted through exposure to cold and water but found that in law the death of the workman was not caused by accident arising out of and in the course of his employment. On these facts, as set forth in a stated case to the Second Division of the Court of Session, that court held that, since it was established that the chill, which caused the disease, had arisen out of and in the course of his employment, the workman's death from the disease was the result of an injury by accident within the meaning of the Workmen's Compensation Act, 1925. On appeal to the House of Lords, Lords Tomlin, Thankerton, Macmillan, Wright and Alness held that the Court of Session in Scotland was right in this conclusion. Lord Tomlin after reviewing the previous decisions from Fenton v. Thorley[14] in 1903 to Partridge Jones and John Paton Ltd. v. James[15], said that these decisions inescapably led to the conclusion that upon the arbitrator's findings of fact the Court of Session was bound to hold that Walker's death was caused by personal injury by accident in the sense of the Workmen's Compensation Act.
The Compensation Board in the present case gave no reasons for its decision that the applicant's injury was not caused by accident, though it did specifically find that the injury "arose out of and in the course of" her operating the machine within the scope of Part I of the New Brunswick Workmen's Compensation Act. The learned counsel for the Board in his argument before us suggested that the decision proceeded on the ground that the injury was one which gradually developed during the period in which she was required to operate the machine, and was for that reason not the result of any one particular strain or any strain which it was possible to identify as having occurred on any particular day. If this were the basis of the Board's decision that the injury was not caused by accident, then I think with all respect for the reasons I have already indicated the Board misdirected itself as to the law.
It is true that there had been some decisions in the Court of Appeal since Fenton v. Thorley[16] to the effect that unless the injury be one of such a nature that its occurrence can be proved to have occurred at some definite time, it cannot properly be held to be an accident within the meaning of the statute in question. The learned counsel for the Board relied especially upon the decisions of the Appeal Court in Steel v. Camell, Laird & Co.[17] and Walker v. Hockney Bros.[18], but an examination of these cases shows that neither of them bears any analogy to the case now before us.
The Steel case (3) was the case of a caulker, who in the course of his employment had to use white and red lead which were smeared by him upon rope-yarn and worked in with the hands. He gradually accumulated lead in his system, with the result that he suffered from lead-poisoning, which produced partial paralysis and incapacity for work. Although the arbitrator found that personal injury by accident arising out of and in the course of the employment had been caused to the workman, Collins, M.R., in his reasons said he found that the injury to the applicant was lead-poisoning, which was brought about through the applicant being saturated with lead in consequence of his being in continuous contact with it and that in any case the result must have come about through long exposure to contact with the lead and gradually, not suddenly. He also said that it was not possible to indicate any precise time at which the mischief arose; and Cozens-Hardy, L.J., said the statute negatives the idea that it applied to a case like the one then under consideration, where the only suggestion was that the injury was due to some or all of a succession of accidents, and that injury by disease alone, not accompanied by an accident was expressly excluded, as pointed out by Lord Macnaghten in Fenton v. Thorley[19]. In so far as the possibility of indicating the precise time, at which the mischief arose, is concerned, the dicta relied upon, I think, must now be taken as subject to the qualification indicated in the decision of the House of Lords in Burrell v. Selvage19.
In Walker v. Hockney[20] the workman gradually acquired paralysis of his right leg through the strain of riding a heavy carrier tricycle for his employers during a period of about six years.
As to the dictum of Lord Birkenhead, L.C., in his speech in the House of Lords in Innes v. Kynoch[21], upon which the Board's counsel also relied, regarding the necessity of the accident taking place "at some one particular time," if the whole context, in which this statement occurs, is read, it will be found that His Lordship's view was that, although in order to constitute an injury by accident there must be some particular occurrence happening at some particular time, what that particular time was was "immaterial so long as it reasonably appeared that it was in the course of the employment," which is precisely the view adopted by the House of Lords in the Burrell case (1) of 1921.
Whatever may be said of the judgment of the Appeal Court in Ormond v. Holmes[22], no support whatever can be found either in the reasons of Slesser, L.J. or Romer, L.J. or in those of Luxmore, J., for the proposition that a straining of any muscle or other organ of the human body cannot properly be held to constitute an accident within the meaning of the statute in any case where it appears that the incapacity for which compensation is claimed may have developed therefrom gradually, and not suddenly. Indeed as I read the several judgments their purport is quite to the contrary. The learned justices founded themselves entirely upon the specific findings of the arbitrator and in order that these may be clearly understood it should be explained that Ormond had been employed by the Holmes Company for a number of years as a blacksmith striker and had for a long time prior to 1935 been suffering from arterio sclerosis and very high blood pressure. While rising from his bed at home on the morning of September 27th, 1935, he had an attack of hemiplegia, commonly called a stroke, and was compelled to rest until October 9th, 1935, when he returned to his usual work against the advice of his doctor. On December 20th he started work at 7 o'clock, his usual time, but at 7.30 was observed to be looking ill, he was dragging his right foot and his mouth was drawn up on the right side. He also felt his right arm gradually losing power during the morning. Between 10 and 10.30 a.m., he collapsed from a second and severer stroke. Both attacks were due to thrombosis or clotting. In claiming compensation he alleged that his incapacity was caused by an accident which happened on December 20th, arising out of and in the course of his employment. The arbitrator found that the work upon which Ormond was actually engaged on December 20th neither caused nor contributed to nor accelerated the second stroke and that the thrombosis was coming on that morning and would have inevitably resulted in hemiplegia even if he had not done any work that day, but that all the work he had been doing since October 9th up to the time he began to work on December 20th, and indeed all muscular effort or exertion up to that time accelerated the second attack. Having stated that he could not associate the second attack with any particular work either on December 20th or on any particular day before then, and that in the circumstances he regarded the stroke as the final stage of a long standing disease accelerated by the general wear and tear of previous work and all other strenuous exercises up to but not including any work done on that morning, he held that the workman had failed to prove an injury from any accident within the meaning of the Act.
The decision of the Appeal Court proceeded entirely on the ground that the second stroke on December 20th, which was the alleged injury and accident, was solely induced by the disease (arterio-sclerosis and high blood pressure) and was not caused or contributed to by anything Ormond did on that morning, and that, although the wear and tear of his usual work and all other strenuous exertions between October 9th and that morning may have accelerated this stroke, it was not possible to point to any particular strain or occurrence in the performance of his work during this period of more than two months, to which the change in his condition could be attributed. The case was therefore held not to fall under the House of Lords decisions in Fenton v. Thorley[23], Brintons Ltd. v. Turvey[24], Clover, Clayton v. Hughes[25], Innes v. Kynoch[26], or any of the other House of Lords decisions I have mentioned, the principle recognized and applied in all of which, as Romer, L.J., pointed out, was precisely the same. In the view of all three of the Appeal Justices, the case was rather one of an injury resulting from gradual wear and tear as in Walker v. Hockney Bros.[27] and Steel v. Cammel, Laird & Co.[28] and other similar cases. Both Slesser, L.J. and Luxmoore, J. particularly referred to the judgment of the Lord Justice-Clerk (Aitchison) in Miller v. Carntyne Steel Castings Co. Ltd.[29] in the Scottish Court of Session as illustrating the distinction between a particular cause limited in point of time and a general cause extending throughout a period. "When a workman," said the Lord Justice-Clerk,
collapses under a particular strain it may be and in many cases probably is the climax of a general strain to which he has been subjected throughout many years of employment and without which no collapse would have occurred. Again, when a workman becomes incapacitated without any definite physiological injury or alteration of phase in the disease from which he suffers * * * it may, none the less, be a physiological injury, although it may not be medically possible to isolate and define it. There is one other passage which I think applies particularly to the present case I would like to quote from the reasons of Romer, L.J. It is as follows:
But in the case of infectious diseases it is impossible as a rule to assert that there was any particular occasion on which the bacillus got introduced into the system. If it can be proved that an infectious disease was contracted at a particular time during the employment, even though the exact date cannot be specified, then on the principle of Brintons, Ltd. v. Turvey[30], the contracting of the disease may be an accident within the meaning of the Workmen's Compensation Act (see Grant or Innes v. Kynoch[31]).
Perhaps I should have mentioned the decision of the Court of Appeal in McFarlane v. Hutton in 1926[32], where it was held that
If it appears that the work being done has probably caused an internal strain on the heart or the system generally, resulting in a physiological injury, such an injury is one resulting from an accident within the meaning of the Workmen's Compensation Act.
I can find nothing in any of the judgments in the very recent case of Fife Coal Co. Ltd. v. Young[33], in the House of Lords, regarding which the respondent's counsel filed a special memorandum, that in any way detracts from the authority of its previous decisions in Brintons Ltd. v. Turvey30, Innes or Grant v. Kynoch31, Burrell v. Selvage[34] or Walker v. Bairds[35], or lends any support to the contention that compensation must be refused unless it is proved that the incapacity resulted, either from a particular strain, or the strain the applicant sustained on a particular day. The doctrine as to the necessity of dating the accident as having occurred on a particular day seems to have been founded on the provisions of the British Act regarding notice of the accident. No question as to the sufficiency of the notice arises in this case, as the findings of the Board on its original consideration and reconsideration of the respondent's application plainly show.
Where it is found that such an injury as Miss Theed sustained arose out of and in the course of her employment, as the Compensation Board has itself specifically found, and that injury is a physiological injury, as was incontrovertibly demonstrated by the operation which it necessitated, the injury itself constitutes an accident in the sense of a mishap or untoward event not expected or designed, s. 7 of the New Brunswick Act makes the payment of compensation compulsory, unless the Board is of the opinion that such accident was wholly or principally due to intoxication or serious and wilful misconduct on the part of the applicant or to a fortuitous event unconnected with the industry in which he or she was employed, of which there is of course no suggestion in the present case. Whether such an injury or mishap results from a particular strain, as of a single muscle or group of muscles, or from the culmination of a general straining of the muscular and ligamentous attachments of the particular joint affected, makes no difference, when the injury is identified, as it has been in this case, as a definite physiological one arising out of and in the course of the applicant's employment. The mishap of course necessarily implies a particular occurrence at some particular time, but, as Lord Birkenhead put it in the Kynoch case[36], what that particular time was is immaterial so long as it reasonably appears that it was in the course of employment.
The evidence in the case before us clearly proves that Miss Theed operated the addressograph machine only on two occasions, first, for a period of two or three days about the middle of December, and again, two or three weeks later, for a second period of two or three days, and that she felt the symptoms of her injury the night after she first operated the machine.
The appeal should be dismissed with costs, against which costs the appellant shall be entitled on taxation to credit for any moneys which it may have paid to the respondent under the terms of the order granting special leave to appeal.
Davis J.—The point in this case is, that the young woman sustained a definite physiological injury as the direct result of the work in which she was engaged; that is an accidental injury in the sense of the statute. The case comes clearly within the governing principle in the recent judgment of the House of Lords in Fife Coal Co. Ltd. v. Young36. We are not concerned in this appeal with the difficult questions which arise where there is a progressive disease which has not been expressly made, by statute or regulation, an industrial disease. In the numerous authorities under the English Workmen's Compensation Act the judges have always been careful to abstain from lending colour to the suggestion (except in the case of certain industrial diseases which have been expressly provided for) that a mere disease which one cannot say with any precision was contracted at any particular time or at any particular place, was an accident which entitled a workman to compensation. Lord Atkin said in the Fife Coal case[37] at p. 489:
Whether to constitute an accident each employment bacillus or flight of bacilli must have its own day, or whether the gradual effect of a succession of them in poisoning the system can. be said to be injury by accident is the question reserved in this decision.
On the established facts in the case before us there was a definite physiological injury that can be traced without any doubt to the young woman operating by hand, in the ordinary performance of her work, a machine that was too hard for her to work. The particular days on which she worked the machine were very few and were proved with precision and the physical injuries suffered are clearly established to be the direct result of her working the machine. I can see no difficulty on the authorities in regarding this as an accidental injury within the meaning of the statute.
I agree that the appeal must be dismissed.
The judgment of Kerwin and Taschereau JJ. was delivered by
Kerwin J.—The respondent, Helen Elizabeth Theed, was a stenographer employed in general office work at Saint John, New Brunswick. While operating an addresso-graph or embossing machine in the course of her employment she tore certain ligaments in her back. A claim for compensation under The Workmen's Compensation Act of New Brunswick (chapter 26 of the Statutes of 1932 and amendments), made to the Workmen's Compensation Board, was disallowed, the Board's certificate stating that there was not sufficient evidence of injury by accident. Upon the respondent's application and in pursuance of certain provisions of the Act, the Board reconsidered its ruling and after the taking of oral evidence issued the following amended ruling:—
1. That the personal injury of which the applicant complains arose out of and in the course of her operating an embossing machine in an employment within the scope of Part 1 of the said Act.
2. That the said injury was not caused fey accident.
The respondent obtained leave to appeal on a question of law, from the ruling, to the Appeal Division of the Supreme Court of New Brunswick, and the appeal was allowed. By special leave of that Court, the Board now appeals.
The question of law to be determined is whether the injury caused to the respondent was caused by accident within the meaning of the Act, and the determination of that question depends upon the proper construction of section 7, the relevant part of which is as follows:—
7. When personal injury or death is caused to a workman by accident arising out of and in the course of his employment in any industry within the scope of this Part, compensation shall be paid to such workman or his dependents, as the case may be, as hereinafter provided, unless such accident was, in the opinion of the Board, intentionally caused by such workman, or was wholly or principally due to intoxication of serious and wilful misconduct on the part of the workman, or to a fortuitous event unconnected with the industry in which the workman was employed.
In view of the reliance placed by the appellant upon certain decisions in England, there should also be noted the provisions of section 81. By virtue of the first subsection, presuming the necessary conditions were fulfilled, if the respondent's disability were a disease which had been declared by regulation of the Board to be an industrial disease, she would be entitled to compensation "as if the disease was a personal injury by accident and the disablement were the happening of the accident." Her disability has not been included in the list of industrial diseases, but by subsection 2:—
2. Nothing in this section shall affect the right of a workman to compensation in respect of a disease to which this section does not apply, if the disease is the result of an injury in respect of which he is entitled to compensation under this Fart. In the present ease the respondent's disability is not a disease. Before the Board, Dr. Skinner testified as follows:—
Q. Would you explain to us just what the nature of the injury or trouble was?
A. Miss Theed had one of those soft tissue injuries that is really undefinable. For a lack of a better term, she would come under the group of sprains and strains. There was apparently constant tenderness and constant pain over the spine at the eighth thoracic vertebra. Dr. Shannon had previously demonstrated this numerous times and I found her condition just as he described it with the tenderness over this point on movement.
Q. Which side of the spine was this on?
A. Over the tip of the transverse process: both sides of the spine: ligaments and muscles. The maximum pain was right in the middle line. On operation there was nothing more than what one might call thickening of the fibrous tissue of the region: that is again one of the rather indefinite, undefinable things that we have to face in sprains and strains. Right over the spinous process the tissues were so thickened that one had a sensation of cutting through a definite bursa. Injury like this is described as tears in the ligaments. Dr. Shannon really instructed me to operate. Dr. McKay was in consultation and it was the sort of thing that one hesitates to plunge in on until everything has been done. The only way we could define it to ourselves before that was that the fibrous ligamentous attachments to that particular bone had been strained and in healing they had healed so as to give abnormal tensions, so with the idea of releasing those tensions we went in. We freed all the muscle and ligamentous attachments from that part of the bone and removed the spinous process itself. I am more than surprised at the agreeable result we got.
Q. Would you say the condition you found there, by your diagnosis and operation, could only result from injury?
A. Yes.
Q. Would you say that constant heavy work would cause it?
A. I do not think constant smooth work would cause that condition. I think there has got to be a stimulus to muscle spasm and I think it is a question of constant jolts, constant irritation of that nature, to keep the muscle in spasm so that one muscle is pulling on another.
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Q. In your opinion, would you say that any one jolt would be the one that would cause it or the continuous jolting?
A. I cannot answer that question.
Q. What would be your opinion?
A. In o