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Travelodge Fiji Limited Suva v Labour Officer [1994] FJHC 180; Hba0001j.93s (9 December 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO. 1 OF 1993

Between:

TRAVELODGE FIJI LIMITED SUVA
Appellant

- and -

THE LABOUR OFFICER for
KARALAINI DIRATU (wife) of
deceased Sevuloni Komai
Respondent

Mr. Ram Krishna for Appellant
Mr. Paul Cowey for Respondent

JUDGMENT

This is an appeal from the judgment of Suva Magistrate's Court dated 4 August 1992 against an award of compensation to the respondent, the widow of the deceased workman, under the Workmen's Compensation Act Cap. 94 (hereafter referred to as the "Act").

In the court below the Labour Officer (the original Applicant) for and on behalf of KARALAINI DIRATU wife of the deceased SEVULONI KOMAI (hereafter referred to as the 'deceased') applied for compensation under section 5 of the Act against the deceased's employer Travelodge Fiji Limited (the original Respondent) for personal injury by accident arising out of and in the course of his employment with Appellant.

Briefly, the facts of the case are as set out in the Judgment of the learned Magistrate (M/s A. Prasad) and are inter alia as follows:-

"The deceased Sevuloni Komai a Storeman employed by Travelodge died during work hours. His widow Karalaini Diratu the Applicant in this case claims compensation from his employers.

As a storeman deceased's work involved supplying goods from the storeroom to the kitchen. He was in charge of stacking the goods, lifting of up to 50 Kg of rice, sugar, flour, lifting and stocking heavy frozen goods, putting goods in the trolley and transferring them to the kitchen, pushing the trolley to the distance of 50 - 70 meters. On the morning of deceased's death he started work at 8 am and at approximately 9.30 am took morning tea break.

After the break he was talking to another employee when he collapsed and died."

At the hearing in the Magistrate's Court the Appellant did not adduce any evidence in its defence whereas evidence on behalf of the Respondent was given by the Labour Officer VINESH MAHARAJ (PW1), KARALAINI DIRATU (the widow of the deceased) (PW2), KAVINDRA K. SINGH (a fellow employee of the deceased) (PW3) and Doctor ISOA BAKANI (PW4).

The then learned Magistrate in her judgment made the following findings and made an order for compensation in favour of the deceased's widow:

"It is evident from the evidence of Mr. Singh that the night before was the stock-taking night and the deceased started work at 8 am on the morning of the accident.

Taking into consideration together with the evidence of Dr. Bakani I find that:

1. That Mr. Komai suffered personal injury by accident;

2. That the injury arose out of employment;

3. That the injury occurred in the course of the employment.

I further find that the Applicant was fully dependent on the deceased at the time of his death. The Respondent is liable to pay full compensation to the Applicant, that is $12000".

The Grounds of Appeal are as follows:

"(i) The learned Magistrate erred in fact and in law in holding that Sevuloni Komai, deceased, died as a result of personal injury by accident arising out of and in the course of his employment with the Appellant in terms of Section 5 (1) of the Workmen's Compensation Act, Cap. 94.

(ii) The learned Magistrate failed to have any proper regard to the evidence adduced concerning the pre-existing heart condition of the deceased and the effect of such condition on the deceased and having found that such condition could have caused the deceased's death at any time she erred in holding that the death arose out of the deceased's employment.

(ii) [sic] The learned Magistrate erred in not finding that the death of the deceased was unrelated to employment.

(iii) That the learned Magistrate erred in fact and in law in not making a finding whether the deceased's pre-existing disease had been aggravated, accelerated, exacerbated or deteriorated and that the employment had been a contributing factor or the degree of the incapacity produced thereby which resulted in death."

I am grateful to both counsel for the very comprehensive written submissions they have made in the Appeal.

In considering this appeal I have not lost sight of what the House of Lords said in the well-known and often-quoted case of BENMAX v AUSTIN MOTOR CO LTD (1955) AC 370 when it pointed out that in appeals such as this it is necessary to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found or, as has sometimes been said, between the perception and evaluation of facts. On this aspect LORD REID at p.376 said:

"in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from the task, though it ought, of course, to give weight to his opinion."

I have also borne in mind the following words of LORD HALSBURY, L.C. in RIEKMANN v THIERRY (1896) 14 RPC 105 at p.116 which was cited in BENMAX (supra) at p.370:

"The hearing upon appeal is a rehearing and I do not think there is any presumption that the judgment in the court below is right."

And later in the same speech he said (ibid):

"Upon appeal from a judge where both fact and law are open to appeal, it seems to me that the appellant tribunal is bound to pronounce such judgment as in their view ought to have been pronounced in the court from which the appeal proceeds, and that it is not within their competence to say that they would have given a different judgment if they had been the judge of first instance, but that because he has pronounced a different judgment they will adhere to his decision."

Therefore in the case before me in accordance with established principle the Court will not interfere with findings of primary fact which depend on the credit of witnesses, and as stated above, to use the words of MILES C.J., "as to inferences drawn from primary facts, in general, an appellate court is in as good a position as the tribunal to decide what inferences are to be drawn from the findings of the tribunal from which the appeal is brought, and "once having reached its own conclusion, will not shrink from giving effect to it" (in RADOVANOVIC v WHITE CONSTRUCTIONS (ACT) PTY LTD 106 FLR 405 at p. 406).

The appellant has put forward four grounds of appeal. To my mind there is a great degree of overlapping between the grounds and it would be much more convenient if I were to consider them as one ground and therein deal with the following points raised in them in the manner hereafter appearing:

"(a) that the three essential elements as required by s.5(1) of the Act have not been satisfied;

(b) the effect of "pre-existing heart condition" and its affect on the deceased has not been taken into account;

(c) that the death was unrelated to his employment;

(d) whether the death resulted as a result of deceased's "pre-existing heart disease" or the employment had been a contributing factor had not been considered.

The Respondent had claimed compensation under s.5(1) of the Act, which provides as follows:-

"If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter provided, be liable to pay compensation in accordance with the provisions of this Act and, for the purposes of this Act, as accident resulting in the death or serious and permanent incapacity of a workman shall be deemed to arise out of and in the course of his employment, notwithstanding that the workman was at the time when the accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instruction from his employer, if such act was done by the workman for the purposes of and in connexion with his employer's trade or business."

The onus was on the widow (the Respondent) to prove the following three essential elements of her claim:

"(i) that the workman suffered personal injury, i.e. physiological injury or change, by accident;

(ii) that the injury arose out of the employment;

(iii) that the injury occurred in the course of employment." (CARPENTERS (FIJI) LTD v LABOUR OFFICER FOR KATARINA ESITA 36/84 FCA - cyclostyled judgment p.3)

The claimants "have to prove their case; that is to say, they must show with reasonable clearness that the accident actually did come from the employment" (HAWKINS v POWELL'S TILLERY STEAM COAL CO. [1911] UKLawRpKQB 38; (1911) 1 K.B. 988 at p.995 per FLETCHER MOULTON L.J.)

The drawing of inferences from a given set of facts particularly in pre-heart condition cases is difficult. In any case one has to rightly direct oneself on the law and draw inferences from the facts; and ".... So long as there is evidence upon which the arbitrator, as a reasonable man, can come to a finding, it is not competent for the appellate court to substitute their own view of the weight of the evidence and the balance of probabilities for the view of the arbitrator" (DAVIES v ARMSTRONG - WHITWORTH (1933) 26 B.W.C.C. 299) (THE WORKMEN'S COMPENSATION ACTS 32nd Ed. 1939 p.119). (hereafter referred to as "WILLIS").

In this Application the Respondent had stated that the injury was that the deceased died of "fatal heart attack from coronary artery disease"; and in Answer the Appellant stated:

"(a) that the deceased had been suffering from coronary artery disease and died as a result of natural progression of the said disease; and

(b) the said natural progression of the said disease was unconnected with the deceased's employment; and

(c) that it denies that the deceased's said disease had in any way contributed to or aggravated by any act or omission of the Respondent."

It is common ground that the deceased collapsed at work while talking to one Binesh, Sales Representative from Gibbs and Chemicals. It was also a specific finding by the learned Magistrate that "the night before was the stock-taking night and the deceased started work at 8.00 a.m. on the morning of the accident". Dr. Bakani (PW4) is the only one who could give an account of the deceased's medical condition as to how the deceased could have come by his death and I shall deal with his evidence hereafter.

Although the learned Magistrate's judgment is short and does not set out in any detail the reasoning behind her findings, perhaps because the facts are confined to a very narrow compass, she has come to the correct conclusion and has found the three essential elements proved in this case.

Bearing in mind the elements that have to be proved, the determination of the issue therefore depended upon sufficiency of evidence. As MILES CJ said in RADOVANOVIC v WHITE CONSTRUCTIONS (1992) 106 FLR 405 at 411 supra : "This is a civil case. The worker does not have to exclude every reasonable hypothesis consistent with absence of liability on the part of the respondent."

Now I shall deal with each of the said three essential elements separately.

(i) Was it personal injury by accident?

It is not in dispute that the deceased suffered a heart-attack at work and died.

On this first element, namely, "personal injury by accident" I refer to WILLIS (supra) p.8 where it is stated:

"The word "accident" does not necessarily involve the idea of something fortuitous and unexpected as formerly held (HENSEY v WHITE [1899] UKLawRpKQB 227; (1900) 1 Q.B. 481. ......... It includes injury caused by over-exertion in the ordinary course of employment (Fenton v. Thorley[1903] UKLawRpAC 48; , [1903] A.C. 443; 5 W.C.C. 34 Digest 266, 2264). The word "accident," is used in the Act "in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed (per LORD MACNAGHTEN, ibid., at p.448); or as denoting or including "any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence" (per LORD SHAND, ibid., at p.451); or "any unintended and unexpected occurrence which produces hurt or loss" (per LORD LINDLEY, ibid., at p.453).

It is further stated (ibid):

"Applying the above description of accident to the case where a man suffering from serious aneurism ruptured it by an ordinary exertion (Clover v. Hughes[1910] UKLawRpAC 7; , [1910] A. C. 242; 3 B. W. C. C.275; 34 Digest 273, 2316), it was said that the event was unexpected in the sense that a sensible man would not have expected it from the nature of the work being done, and that it was not correct to ask whether a medical man knowing the condition of the workman would have expected it."

In FIFE COAL CO. LTD v YOUNG (1940) AER H.L. 85 at 91 LORD ATKIN said:

"... it is necessary to emphasize the distinction between "accident" and "injury", which in some cases tend to be confused. ...... It is now established, however, that, apart from external accident, there may be what no doubt others as well as myself have called internal accident.

(underlining mine for emphasis) ..............

A man suffers from rupture, an aneurism bursts, the muscular action of the heart fails, while the man is doing his ordinary work, turning a wheel or a screw, or lifting his hand. In such cases, it is hardly possible to distinguish in time between accident and injury. The rupture which is accident is at the same time injury, from which follows at once, or after a lapse of time, death or incapacity."

Also on "personal injury by accident" the following extract from the judgment of LORD MACNAGHTEN in CLOVER, CLAYTON & CO. LIMITED v HUGHES [1910] UKLawRpAC 7; (1910) AC 242 AT 247-8 is apt:

"There the Court of Appeal had held that if a man meets with a mishap in doing the very thing he means to do the occurrence cannot be called an accident. There must be, it was said, an accident and an injury: you are not to confuse the injury with the accident. Your Lordships' judgment, however, swept away these niceties of subtle disquisition and the endless perplexities of causation. It was held that "injury by accident" meant nothing more than "accidental injury" or "accident," as the word is popularly used."

In both CLOVER (supra) and FENTON (PAUPER) V J THORLEY & CO. LIMITED [1903] UKLawRpAC 48; (1903) A.C. 443 the House of Lords held that the workman had suffered personal injury by accident.

In the former case the workman was suffering from serious aneurism whilst employed in tightening a nut by a spanner when he suddenly fell down dead from rupture of the aneurism. In the latter the workman, employed to turn the wheel of a machine, by an act of over-exertion ruptured himself.

Now, in the present case, I have no doubt, on the facts of this case bearing in mind the authorities cited above, that there was an accident in the popular sense of the word. The deceased suffered a heart attack and so "broke part of his body" (as LORD ROBERTSON said in BRINTONS v TURVEY [1905] UKLawRpAC 21; (1905) AC 230) which he could not possibly mean to do. This was accident occurred in the course of his employment. This cannot be disputed as he was working (albeit standing and talking) doing something connected with the pursuit of his employer's business at the time when he collapsed and then died.

Therefore, the first element i.e. personal injury by accident, as found by the learned Magistrate has been proved.

I shall now deal with the second and third elements, namely:

(ii) Did the injury arise out the employment? And

(iii) Did it arise in the course of the employment?

The determination of these issues involve mainly issues of fact and in part they are questions of law. Since the two questions posed before me overlap each other that to treat them separately would be repetitive so therefore I would deal with (iii) above first showing when course of employment began and ended and then with (ii) dealing mainly with the work the deceased was employed to do.

The brief facts stated hereabove which are not in dispute, clearly show that while working, except for a few minutes when he indulged in talking, he died. Hence he died in the "course of employment".

The test of what is "in the course of employment" is stated thus in WILLIS supra at p.22.

"A workman is acting in the course of his employment when he is engaged 'in doing something he was employed to do.' Or what is, in other and I think better words, ... when he is doing something in discharge of a duty to his employer, directly or indirectly, imposed upon him by his contract of service. The true ground upon which the test should be based is a duty to the employer arising out of the contract of employment, but it is to be borne in mind that the word 'employment,' as here used covers and includes things belonging to or arising out of it" (St. Helen's Colliery Co. v. Hewitson, [1924] A.C. 59, 71; 16 B. W.C. C. 230, 238, per Lord ATKINSON; 34 Digest 280, 2364).

"The man is not in the course of his employment unless the facts are such that it is in the course of his employment, and in performance of a duty under his contract of service, that he is found in the place where the accident occurs. If there is only a right and there is no obligation binding on the man in the matter of his employment there is no liability" (ibid., p. 95, per Lord WRENBURY);

"I think an accident befalls a man 'in the course of' his employment, if it occurs while he is doing what a man so employed may reasonably do within a time when he is employed, and at a place where he may reasonably be during that time" (Moore v. Manchester Liners[1910] UKLawRpAC 39; , [1910] A.C. 498; 3 B. W. C. C. 527; 34 Digest 309, 2547, per Lord LOREBURN, L. C.)."

The two conditions which must be fulfilled before an accident can be said to have occurred "in the course of employment" are: (a) the accident must have occurred during the employment of the workman and (b) it must have occurred while he was doing something which "his employer could and did, expressly or by implication, employ him to do or order him to do" (HELEN'S COLLIERY supra p.91, 92).

In the case before me both the above conditions have been met. The evidence reveals that the deceased was a purchasing officer at the time of his death having been employed by the appellant for about seven years. He started work at 8.00 a.m. on the day of his death but on the previous day and evening he did stock-taking till fairly late in the evening.

I therefore find, as the learned Magistrate did, that the third element has also been proved.

Now I shall deal with element (ii) above, namely, whether the injury "arose out of the employment".

The term has been defined in WILLIS supra at p.44 thus:

"'Arising out of the employment' obviously means arising out of the work which the man is employed to do and which is incident to it - in other words, out of his service" (Davidson v. M'Robb, [1918] A.C. 304, at p.314; 10 B. W. C. C. 673, at p.684; 34 Digest 276, 2339).

The expression is not confined to the mere "nature of the employment" as formerly held in several cases, but it "applies to the employment as such - to its nature, its conditions, its obligations, and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute 'arising out of the employment apply."

As already stated, the deceased was a purchasing officer and his duties have been outlined by PW3. The work involved supplying five stores in Travelodge with goods which involved pushing of trolley for long distances. It was while he was standing and talking to someone that he collapsed and died.

It is in the light of the deceased's medical condition that this aspect of the issue could be better dealt with and so I propose to set out briefly his medical condition as stated by Dr. Bakani (PW4).

The doctor testified that he had seen the accused "on occasions for some years". The deceased suffered from coronary artery disease. He had not examined the deceased when he was brought to the hospital but he was requested to provide a medical opinion as to what could have contributed to his death "on the basis of being previous doctor". He said that "death was caused by heart attack". "It is considered physical activities can and would provide further cardiac event whether can be mild or severe fatal or otherwise"; that "sudden death could occur at rest or even minimal provocation of physical activity, leave alone exercise". He said that the disease "does progress"; certified "fit to work" after said period of sick leave; disease "was revealed in the sick sheet given to his employer"; "cause of death - not due to progress due to blockage. Could be due to detachment of cell.... Could be both progression and deposit"; in the deceased "any activity ranging from mild to moderate would be harmful. Would not exclude possibility of death even at rest but heart attack is often precipitated by stress - physical nature highest point."

The test to be applied in order to determine whether an accident arises out of the employment has been stated by LORD SUMNER in L. & Y.R. v HIGHLEY (1917) A.C. 352, 372 thus:

"There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance. It is this: Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because what it was not part of the employment to hazard, to suffer, or to do cannot well be the cause of an accident arising out of the employment. To ask if the cause of the accident was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or, conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his employment that the workman should have acted as he was acting, or should have been in the position in which he was whereby in the course of that employment he sustained injury".

Applying the above test to this case there is no doubt on the facts of this case that, although the deceased suffered from the disease referred to by the doctor, nevertheless it was the work which he was doing in the course of his employment that he suffered the heart attack when he collapsed and died.

In a very similar situation as in the case before me, the headnote to PARTRIDGE JONES and JOHN PATON LIMITED and JAMES (1933 AC 501) sets out what factors are to be taken into consideration. It states:

"An accident arises out of a workman's employment within the meaning of s. 1 of the Workmen's Compensation Act, 1925, when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of the workman's health. In each case the arbitrator adjudicating upon a claim for compensation must consider whether in substance, so far as he can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it."

In PARTRIDGE (supra) the deceased a ripper was suffering from disease of the coronary arteries, and his state was such that although he might die at any time without any act of physical exertion, any such exertion was dangerous and likely to lead to heart failure. He stopped work for a short time and sat down. Within ten minutes of stopping work he died. The House of Lords affirmed the award of damages.

The case before me is no different from PATRIDGE (supra). Here the doctor came to the conclusion that "the sudden death that the deceased had was heart disease related" and "it could occur at rest or even minimal provocation of physical activity, leave alone exercise". The doctor in cross-examination said that "after some period of sick leave certified fit to work, he was a storeman. Disease was revealed in the sick sheet given to his employer."

An argument similar to that put forward by the appellant as stated in its Answer referred to hereabove that "although the work contributed to the death, that is not sufficient unless you can point to a specific injury resulting from a specific act" (to use the words in PARTRIDGE) do not hold water these days and was rejected by the House of Lords where LORD BUCKMASTER said:

"Whatever may have been said about the merit of that argument some twenty years ago, it appears to me it is impossible to be effectively advanced to-day, while this House, as well as all the other Courts, are bound by what was decided in the case of Clover, Clayton & Co. v. Hughes. (1) In that case a workman, who was suffering from a serious aneurism, was employed on tightening a nut by a spanner when he fell down dead. The county court judge found the death was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal, and this House - Lord Atkinson and Lord Shaw dissenting - held that it was a case of personal injury by accident arising out of and in the course of employment. There appears to me to be no possible ground of distinction between this case and that, excepting that in that case the work that the man was doing caused his arteries to rupture, and in this case produced the condition described by the learned county court judge which caused his heart to fail to function and produced the attack of angina pectoris which resulted in his death."

In my opinion the general principles applicable to this matter have been very clearly stated by LORD LOREBURN in CLOVER, CLAYTON (supra) at p. 246 thus:

"I do not think we should attach any importance to the fact that there was no strain or exertion out of the ordinary. It is found by the county court judge that the strain in fact caused the rupture, meaning, no doubt, that if it had not been for the strain the rupture would not have occurred when it did. If the degree of exertion beyond what is usual had to be considered in these cases, there must be some standard of exertion, varying in every trade".

He goes on to state that:

"Nor do I think we should attach any importance to the fact that this man's health was as described ..... An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health."

Further at p.247 he continues:

"In each case the arbitrator ought to consider whether in substance, as far as he can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it. In other words, did he die from the disease alone or from the disease 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 help in any material degree?" The answer to that question has been found in this case in the clearest terms, and, if any possible comment could be made upon the conclusions of the learned county court judge, my feeling would be that they had not been sufficiently emphatic as to the association of the employment and the disease which resulted in death."

In the same case at p. 249 LORD MACNAGHTEN gave judgment to the same effect said:

"The real question, as it seems to me, is this: Did it (the death) arise out of his employment? On this point the evidence before the county court judge was undoubtedly conflicting. But he has held that it did, and I think there was sufficient evidence to support that finding..... 'The death,' the learned judge says, 'was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal.'"

But what is very relevant for our purpose in this case is when he continued and said that:

"The fact that the man's condition predisposed him to such an accident seems to me to be immaterial." (underlining mine for emphasis).

Similarly, LORD COLLINS at p. 256 agreed with LORDS LOREBURN and MACNAGHTEN and quoted with approval the following passage in the judgment of LORD M'LAREN in STEWART v WILSONS and CLYDE COAL CO., LTD (5 F. 120, 122):

"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."

So much for the English cases. Here at home a number of cases have come up for decision concerning deceased with history of heart disease. One such case is THE LABOUR OFFICER on behalf of LUISA LEGALEVU and THE PORTS AUTHORITY OF FIJI (Civ. App. No. 6 of 1983) F.C.A. There the Court said that:

"There does not seem to be any serious divergence of views as to the principle to be applied in such cases. It is not necessary for the evidence in case of a person with a long history of heart disease to show that a specific injury had resulted from a specific act during the course of employment. But, as was said in Oates v. Earl Fitz William's Collieries Co. (1939 2 All E.R. 498):-

"It was essential that there should be evidence of a physiological injury or change occurring in the course of a man's employment by reason of the work on which he was engaged at or about the time of his death."

The principle was also stated by Goddard J. in Whittle v. Ebbw Vale etc. Co. (1936 2 All E.R. 1221 at 1235) in following words:-

"The principle which I extract from the case of Partridge Jones v James (1933 A.C. 501) seems to me to be this: the House of Lords have decided that where a man in a diseased condition dies and it is found that the disease and the work together contribute to his death, then his death results from accident within the meaning of the Act."

In the Ports Authority of Fiji (supra) because of lack of evidence as to the work the deceased did prior to his death no damages was awarded; but the Court concluded by saying:

"So in the instant case the applicant would have succeeded if there had been any evidence of heart attack during working hours and death followed shortly thereafter."

There was also the Fiji Court of Appeal case, namely BA INDUSTRIES LIMITED and LABOUR OFFICER, BA (Civ. App. 37/83) where the deceased died of a heart attack at home although there was "no positive evidence of existing heart disease". The employer's appeal was dismissed; the Court stated what had to be proved and on whom the decision lay of proving. I would refer to the following extract from this case which is very relevant for the purposes of this case and it is as follows:

"We accept the respondent's submission that there was clear evidence from which the trial court, and the Supreme Court, could have drawn the inference which they both did i.e. the work that the deceased was doing in the course of his employment was a significant cause giving rise to the chest pains and that, likewise, it contributed to the subsequent heart-attack and death. The fact that death did not immediately follow the chest pains does not preclude the inference of causation. (See Whittle v. Ebbow Vale; Supra at 1233.)

No burden lay on the respondent to prove that the deceased was suffering from a heart disease prior to his death. Evidence that the manual work he was engaged in would not, as a rule, trigger a heart-attack in a normally healthy man would only provide basis for inference. The burden on the respondent was to show that the heart attack occurred during the course of his employment and that the work he was doing was a contributing factor. There was, in our view, ample evidence of that and the courts below were quite justified in holding that the respondent had discharged that burden".

From the facts of the case before me the learned Magistrate was entitled to draw certain inferences and the inferences which she had drawn, I consider, are in accordance with the principles as stated by LORD BIRKENHEAD, L.C. in the case of LANCASTER v BLACKWELL COLLIERY CO., LTD. (1991), 12 B.W.C.C. 400 where he says this:

"The principles which have to be applied to facts like these are now well settled; they have been declared on numerous occasions by your Lordships and they may be very easily summarised. If the facts which are proved give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture, then, of course, the applicant fails to prove his case, because it is plain that the onus in these matters is upon the applicant. But where the known facts are not equally consistent, where there is ground for comparing and balancing probabilities as to their respective value, and where a reasonable man might hold that the more probable conclusion is that for which the applicant contends, then the arbitrator is justified in drawing an inference in his favour."

In considering the issue before me I have given consideration to the arguments put forward by both counsel and to the numerous authorities to which they referred the Court to; but because of the manner in which I have dealt with the principles involved I did not consider it necessary to refer to all the authorities specifically in this judgment.

On the facts of this case, in view of the authorities referred to hereabove, I find that the learned Magistrate was correct in holding that the injury arose out of employment thus satisfying the second element in the issue before me.

I therefore find no merit in the Appellant's arguments as stated in its Answer referred to earlier on to the effect, inter alia, that the deceased died "as a result of natural progression of the sad disease" and that that was "unconnected with the deceased's employment".

To conclude, on the facts of this case which, inter alia, clearly established that the deceased collapsed and died during and under the strain of his work having worked late the previous day doing stock taking, it could not be said that the death was due solely to the progress of his disease and on this aspect it is pertinent to note the following passage from the judgment of CLAUSON L.J in OATES v EARL FITZWILLIAM'S COLLIERIES CO 1939 2 AER 498 at 508:

"In our judgment, a physiological injury or change occurring in the course of a man's employment by reason of the work in which he is engaged at or about that moment is an injury by accident arising out of his employment, and this is so even though the injury or change be occasioned partly, or even mainly, by the progress or development of an existing disease if the work he is doing at or about the moment of the occurrence of the physiological injury or change contributes in any material degree to its occurrence. Moreover, this is none the less true though there may be no evidence of any strain or similar cause other than that arising out of the man's ordinary work."

In the outcome, for the above reasons, on the facts as found by the lower Court, with which I agree, and in view of the authorities referred to above by me, I cannot see that the learned Magistrate had any option to decide otherwise than she did in this case, namely, that the said three essential elements under the said section 5 of the Act have been fulfilled to enable her to make the award.

The appeal is therefore dismissed with costs which is to be taxed unless agreed.

As a result of the outcome of this appeal it is ordered that the sum of $12000 (twelve thousand dollars) paid into Court on 23 February 1993 pending the determination of this appeal pursuant to an Order of this Court be now paid out to the Respondent.

D. Pathik
Judge

At Suva
9 December 1994

HBA0001J.93S