043-NLR-NLR-V-54-MAILENTHINONA-Appellant-and-PEIRIS-DE-SILVA-CO.-Respondents.pdf
188
Mailenthinona v. JPeiris <Sb de Silva tfc Co.
1952Present : Rose C.J.
MAILENTHINONA, Appellant, and PEIRIS & DE SILVA& CO., Respondents 1
S. C. 408—Workmen’s Compensation CI39J51
Workmen's Compensation Ordinance—Accident—Death caused by workman's diseasealone—Liability of employer.
Deceased workman, a carpenter by trade, was 60 years of age and wassuffering from fatty degeneration of the heart. He was at the time of hisdeath engaged upon light work. Upon the facts it was found by the Com-missioner that the death was due to the disease alone and was not attributableto the nature of his work.
Held, that the workman’s death did not arise out of, and in the course of,his employment.-
PPEAL from an order of the Commissioner for Workmen'sCompensation.
M. A. M. Hussein, for the appellant.
S. J. Kadirgamar, with G. L. L. de Silva, for the respondent.
Cur. adv. vult.
i (1944) 45 N. L. JR. 367
(1920) 21 N. L. R. 389.
BOSE C.?.—■»MaiUnlhinona v. JPeiris & de Silva tit Co.
189
July 23, 1952. Rose C.J.—
This is an appeal by the dependant of a deceased workman againsta finding of the learned Commissioner that his death did not arise out of,and in the course of, his employment. The facts of the case appear tobe that the deceased man, who was 60 years of age, was suffering fromfatty degeneration of the heart. According to Dr. Jayewardene, theJ. M. O. of Kandy who performed the post-mortem, the valves of theheart were atheromatous (thickened and whitish). The doctor was ofopinion that death was due to heart failure as a result of the diseasedcondition of the heart. He stated that severe exertion could causedeath in a heart of this type ; moreover that even people who lead asedentary life might suddenly die if the heart was in such condition.It appears that the deceased, who was a carpenter by trade, was at thetime of his death engaged upon light work. He was, according to theevidence, engaged upon making a mould and for this purpose required4 light pine wood planks each of which appears to have been 2 in. wideand 1 in. thick. It appears that pine boards are commonly used forthis purpose, and, according to the evidence of a fellow workman of thedeceased, are very light, and these particular planks could not haveweighed more than a few pounds. Upon these facts the learned Com-missioner found that the death was due to the disease alone and couldnot fairly be said to be attributable in any degree -to the nature of hiswork.
In coming to his decision the learned Commissioner appears to havebeen guided by the correct test which is laid down in Glover Clayton andGo., Ltd. v. Hughes.1 In that case a workman suffering from a seriousaneurism was engaged in tightening a nut with a spanner when hesuddenly fell down dead from rupture of the aneurism. The CountyCourt Judge found upon conflicting evidence that death was caused by astrain arising out of the ordinary work of the deceased operating upon acondition of the body which was such as to render the strain fatal. Threeof the five Law Lords who heard the appeal held that there was evidenceto support the finding that it was a case of personal injury by accidentarising out of and in the course of the employment. The two dissentingLaw Lords held that there was insufficient evidence to justify such afinding. Lord Lorebum, who delivered the principal judgment, saysat page 247, “ in each case the arbitrator ought to consider whether insubstance, as far as he can judge on such a matter, the accident camefrom the disease alone, so that whatever the man had been doing itwould probably have come all the same, or whether the employmentcontributed to it. In other words, did he die from the disease alone orfrom the disease and employment taken together ? Looking at itbroadly, I say, and free from over-nice conjectures, was it the diseasethat did it, or did the work he was doing help in any material degree ? ”.This is the test that the learned Commissioner endeavoured to applyin the present case. It is significant that two of the three Law Lordswho affirmed the finding of the County Court judge conceded that theythemselves might well have come to a different conclusion on the facts,Lord Lorebum saying at page 247, “ In the present case I might have
1 {1910) A.C. 242.
190
Jaya&inghe v. Dayaralnt ■
coine to a different conclusion on the facts had I been an arbitrator,but I am bound by the finding if there was evidence to support itLord Macnaghten says at page 249, “ The real question as it seems tome is this : * Did it arise out of his employment ? ’ On this point theevidence before the County Court Judge was undoubtedly conflictingbut he has held that it did, and I think there was sufficient evidence tosupport that finding, though I do not say I should have come to the sameconclusion myself ” .'
Applying Lord Loreburn’s test to the present matter and havingregard to the consideration that an appellate court should not disturbthe finding of a Commissioner in matters under the Workmen’s Com-pensation Ordinance unless there is no, or insufficient, evidence to supportit, I have come to the conclusion that it would not be proper for me todisturb the -finding in the present case. It seems to me that this iseminently one of those matters in which the inferences to be drawnfrom the evidence might vary with the individual adjudicator, butit is, in my opinion, impossible to say that the learned Commissioner’sfinding is unsupported by the evidence.
For these reasons the appeal is dismissed with costs.
Appeal dismissed.