1973 C 324 (PLP)

Pirdinoshah v. Bachalshah and others A I R 1947 Sind 185 ref. S. A. Hassan for Appellant., S. A. Channa for Respondent. Dates of hearings 11th and 25th January 1973. The appellants, who are tanners by occupation, have brought this appeal to question the order dated 30‑10‑1971 of the Commissioner for Workmen's Compensation, by which a sum of Ra. 1,515.50 was awarded to the respondent as compensation for the injury suffered by him in the course of his employment with the appellants. The circumstances under which this compensation was awarded are these: According to the respondent, he was employed in the appellants' tannery on monthly wages of Rs. 201.00. Between 20th February 1970 and 10th April 1970, the respondent was engaged in scrapping bides and skins, which has previously been subjected to chemical processes by immersion in water containing different chemicals. Due to contact with these hides and skins, the respondent developed akin‑itch on his hands and the lower part of his body, which, according to the medical evidence of Dr. A. K. Memon, disabled the respondent from performing his normal duties. According to fir. A. K. Memon, the respondent suffered permanent partial disability to the extent of 15 per cent. (2) The case of the appellants, as argued before me is that skin‑itch cannot be treated as injury arising by accident within the meaning of section 3 (1) of the Workmen's Compensation Act, 1923. As regards subsection (2) of section 3, in which provision is made for award of compensation to a workman for any occupational disease contacted by him, the appellants contend that skin‑itch i, neither specified fin Part A, nor in Part B, of Schedule III to the Act as an occupational disease, and therefore Vile respondent is not entitled to any compensation. However, Mr. S. A. Channa, the learned Advocate for the respondent, anted that the respondent's case was covered by subsection (4) of section 3 of the Workmen's Compensation Act, which subsection reads as under: "(4) Save as provided by subsections (2) and (3), no compensation shall be payable to a workman in respect of any disease unless the disease is directly attributable to a specific injury by accident arising out of and 9n the course of his employment." Mr. S. A. Channa stated that he was supported by English decis ion given under the corresponding provision of the English Work men's Compensation Act, 1925. This corresponding provision is subsection (4) of section 43 of the English Act and reads as under:- "(4) Nothing in this section shall affect the rights of a workman to recover compensation in respect of a disease to which this section does not apply, If the disease is a personal injury by accident within the meaning of this Act." (3) The question, therefore, is whether the respondent, when he contacted skin‑itch, can be said to have developed a disease directly attributable to a specific injury by accident arising out of and in the course of employment. I am required, therefore, to construe the word "accident" in subsection (4) of section 3 of the Workmen's Compensation Act, 1923. Though it is, impossible to define with exactitude the meaning of the word "accident", but it may be safe to state that accident may either mean some particular occurrence happening at some particular time, or it may even mean the cumulative effect of series of accidents met by an employee in his work. The point in dispute in the instant case in the light of this meaning of the word "accident", may be stated in this way t Whether contraction of a disease by a workman in consequence of an attack of bacilli during the course of his employment, or by reason of being subjected to chemical processes, can be said to be a specific injury by accident within the moaning of subsection (4) of section 3 of the Act. Under the corresponding provisions of the English statute, the view is that contraction of disease doe to attack of bacilli would constitute injury by accident. In Brintons Limited v. Turvey (1905 A C 230), the House of Lords held that there is injury by accident if bacillus passed from the wool to the eye of a workman employed in sorting wool in a factory and infected him with anthrax. Lord Machnaghten in his speech, delivered in this case, observed that "it was an accident that the noxious thing that settled on the man's face happened to be present in the materials which he was engaged in sorting". The question again came for consideration before the House of Lords in Inns or Grant (Pauper) v. G. & G. Kynoch (1919 A C 765). In this case, a workman employed in handling artificial manure, consisting mainly of bone dust, died from blood poisoning caused by his becoming infected through an abrasion on his leg by certain noxious bacilli, which were present in large numbers in bone dust, but were also found in the air and in other substances, though in a much lesser degree. It was found that it was impossible to say with certainty when the infection occurred. The medical evidence was that the infection, which caused the illness, was derived from the poisonous germs contained in the bone dust, which the deceased handled in the course of his employment. Following the earlier case, that is, Brintons Limited v. Turvey, it was held that the fortuitous alighting of the bacilli upon the abraded spot constituted an accident. In his speech, Lord Birkenhead L. C. stated that the Courts have necessarily applied to infection by microscopically small organisms language, which is more commonly used of material forces, and therefore the invasion of the bacillus is conceived of as a blow or physical assault. Proceeding further, Lord Birkenhead L. C. held that where bacillus is not met with, or is very rarely met with except among the implements or the materials of the particular employment, the onus, which is imposed on the claimant would be very much lightened. But where the invading bacillus may be found in the train, in the hem: or in the public house, stricter proof should be required that it is a cast of an "accident" arising out of and in the course of employment. The question then came for consideration in a case before the Court of Appeal, Pyrah v. Doncaster Corporation ((1949) 1 All E L R 883). In this case, the workman was employed as a nurse in an isolation hospital for tuberculosis patients. In October 1944, the claimant was found to he suffering from tuberculosis, and the evidence showed that between February 1943, and April 1944, the claimant was subjected to constant attacks of tuberculosis germs, The majority of the Court held that although it might not be possible to fix the exact dates on which the claimant inhaled tuberculosis germs, on each occasion on which that occurred there was an assault of bacilli which constituted an "accident", and, therefore, the claimant was entitled to compensation. In another case, Fitzsimons v. Ford Motor Co. Ltd. ((1946)1 All E L R 429), the Court of appeal had occasion to consider a case in which a workman developed Raynaund's disease due to his being employed in a job where his work consisted in holding, tightly gripped in the left hand, a hand machine, which was electrically operated and vibrated 2,800 revolutions a minute, whilst with his right hand he pressed 'it against the material to be cut. The claimant was employed In September 1943, and only a year after he found his hand going dead and on the morning of 14th March 1945, he got a "dead bands' 3 times, and from that time was Incapacitated totally until 18th June 1945, and thereafter partially. It was found that each vibration caused by the rapidly rotating instrument was a tiny blow to the appellant's hand and arm, transmitted 'to the nerves, causing damage to their tissue, and ultimately cutting off the flow of blood needed to keep the hand in a healthy condition. Accordingly, the decision of the Court of appeal was that the use of the instrument involved a succession 'of accident. The Injuries to the claimant, who was, therefore, entitled to an award. As against this, reference may be made to two other English decisions, which would appear to take a contrary view. In Williams v. Guest Keen and Nettlefolds. Limited ((1926) 1 K B 497), the Court of Appeal had before it the case of a workman, who had been employed in boring rock top for .a period of ten years and towards the end of that period had only been able to work at Intervals of a few months owing to shortness of breathing, which finally resulted in total incapacity. The workman was found to have fibrosis of both lungs due to his having breathed in particles of silica dust which came from the boring operations, and which in process of time had settled in his lungs eventually producing silicosis. The Court held that gradual inhalation of particles of silica throughout along period did not amount in any ordinary sense to an accident, or a series of accidents. An identical point carne for consideration before the House of Lords in Roberts v. Dorothea Slate Quarries Co. Ltd ((1948) 2 E L R 201). In this case, a workman was employed from 1921 to 1941 in slate quarries as a slate splatter, during which period he inhaled particles 'of silica, which produced silicosis. Consequently, the workman became completely incapacitated since 1942. The House of Lords held that the incapacity caused by silicosis was the result of a continuous process going on substantially from day to day over a period of years and could not be said to be the result of an accident or a series of accidents, and accordingly silicosis was not an injury by accident. Now how to distinguish these two sets of cases? The judicial opinion in England is that the point of distinction between them lies in ‑the length of time over which the series of assaults or Impacts occurred. In the last two cases, the gradual inhalation of particles of silica was over such a long period as to take away the element of accident and substitute that of process, so that the "injury was not an injury by accident". This point has been very succinctly elaborated by Lord Porter in Roberts v. Dorothea Slate Quarries Co. Ltd, as follows: "In truth, two types of oases have not always been sufficiently differentiated. In the one type, there is found a single accident followed by a resultant injury, as in Brintons Ltd. v. Turvey or a series of specific and ascertainable accidents followed by an injury which may be the consequence of any or all of them, as in Burrell (Charles) & Sons Ltd. v. Selvage (1921) 1 K B

355. In either case it is immaterial that the time at which the accident occurred cannot be located. In the other type, there is a continuous process going on substan tially from day to day, though not necessarily from minute to minute or even‑from hour to hour, which gradually and over s period of years produces incapacity. In the first of these types, the resulting incapacity is held to be injury by accident. In the second it is not. In the case of silicosis It is, of course, possible to divide up the cause of the final collapse and say that each particle of silica striking upon and adhering to the lung is a separate accident, but, however analytically maintainable the attribution of the resultant silicosis to an accidental cause is an unreal one. The distinction between accident and disease has been Insisted on throughout the authorities and is, I think well founded Counsel for the employers formulated the proposition on which he relied by suggesting that, where a physiological condition is produced progressively by a cumulative process consisting of a series of occurrences operating over a period of time, and the microscopical character of the occurrences and the period of time involved are such that in ordinary language that process would be called a continuous process, the condition is not produced by an accident or accidents within the Acts. I do not know, however, that any explicit formula can be adopted with safety. There must, nevertheless, come a time when the indefinite number of so‑ailed accidents and the length of time over which they occur take away the element of accident and substitute that of process. In my opinion, disability from silicoses is one of such instances." In Pyrah v. Doncaster Corporation Denning. L. J., posed the question: "Where is the line to be drawn between a disease which is due to an accident or accidents, and a which is due to a process of work". The learned Lord Justice answered this question as follows: "In my opinion, the solution to that question is to be found by remembering that an accident is something fortuitous, something which is unsought but happens by chance, some thing of which it can be predicated that, even if it is very likely to happen, and happen repeatedly, nevertheless it is still a chance that it does happen. Applying this test, if a disease can be attributed to one external factor only, whether that factor be treuma, exposure, exertion, or infection, or such like, then It is undoubtedly due to an accident, even though the precise occasion on which it occurred cannot be ascer tained; but if the disease is due to a number of external factors acting in combination, such as inhaling foreign particles over a long period, exposure to dust, or numerous cuts, then a distinction has to be drawn. On the one hand, the disease is due to a series of accidents if the external factors which, produce it occur foruitously as a matter of chance. . . On the other hand, a disease 'is due, not to a series of accidents, but to a process of work if the external factors which produce it are a continuous and necessary concomitant over a long period of the work in which the man is engaged."

4. For my part I find it difficult to appreciate the distinction between the two types of cases discussed above. Why should a person, who has been subjected to contact with, or attack of bacilli or noxious substances over a longer period be said to have suffered Injury in consequence of a continuing process, and a person Who is subjected to similar contact with, or attack‑,of bacilli or noxious substances over a shorter period, be said to have suffered an injury by reason of a single "accident" or a series of specific "accidents". In both cases, the injury is the consequence of the employment, and therefore it would be difficult to appreciate the rational distinction between the two cases merely because in one case to length of time in the employment is longer than that the employment in the other case. Be that as it may, the respondent's case would satisfy the test laid down by Lord Porter and Denning L. J. According to the respondent, he took employment with the appellants in July 1968, since when he was engaged is scraping bides and skinks which had previously been immersed water containing different chemicals, including sodium sulphate and lime, and to wash these hides and skins and soften them with his feet and clean them with knife, so as to remove chemicals there from, and again to treat the skins with water containing amonium sulphate, boric acid and salt. It was some time in the, early part of 1970 that the respondent developed skin disease. Thus, within less than two years, the appellant started to suffer from the consequences of being subjected to contact with noxious bacilli and substances. L Such bacilli and substances are generally met with in the employ ment of the nature in which the appellant was engaged. It cannot be said that such bacilli or noxious substances are general ly found every where. The medical evidence of Dr. A. K. Memon shows that the appellant developed skin disease by reason of contact with germs in the skins and hides ‑. I contact with chemical substances used to treat skins and hide. The appellant; therefore, did suffer injury by accident arising out of and in the: course of his employment within the meaning of subsection (4) of section 3 of the Workmen's Compensation Act, 1923.

5. The question then arises whether the respondent suffered permanent partial disability for which the Commissioner has awarded compensation to him. On this point, the evidence is that of the respondent himself and of Dr. A. K. Memon. The respondent stated before the Commissioner that he actually recovered from the skins disease, but that, nevertheless, if he ever goes to a tannery, he starts suffering from this disease again. Dr. A. K. Memon merely certified permanent partial disability of the respondent at fifteen per cent without giving any reasons in support of this conclusion. Further, even the Commissioner failed to determine the extent of permanent partial disablement of the respondent, or even to determine whether this disablement has reduced the respondent's caring capacity in any employment, which he was capable of undertaking at the time of the accident. Under section 2 (g) and section 4 (c) (ii) when a workman has been certified to have suffered permanent partial disablement, the Commissioner is required, firstly, to determine the extent of such disability and, secondly, to determine whether this disability has reduced the workman's earning capacity in any employment which he was capable of undertaking at the time of accident and, thirdly, to determine the quantum of compensation payable to the workman. In the instant case, the Commissioner failed to consider the question whether the disability suffered by the respondent bad reduced his earning capacity only if he takes employment in a tannery or whether this earning capacity has been reduced in all types of employments, which the respondent was capable of undertaking at the time he suffered from the injury. Thus, the Commissioner fell into error in failing to determine the material point. For the rule that this point requires determination by the Commissioner, I would refer to Pirdinoshah v. Bachalshah and others (A I R 1947 Sind 185), and Upper Doa6 Sugar Mills Ltd. v. Daulat Ram (A I R 1936 All. 493). Since the material point hat remained undetermined, the proper course for ire would be to remand the case to the Commissioner. Accordingly, the impugned order is set aside and the case sent back to the Commissioner with a direction that he should call for evidence to determine whether the permanent disablement, which the respondent has been certified to have sustained, reduced the earning capacity of the respondent in all types of employment he was capable of undertaking at the time of the accident and to determine afresh the amount of compensation to which the respondent is entitled, as a result of the evidence which may come before the Commissioner, in accordance with section 4 (c), (ii) of the Workmen'& Compensation Act, 1923. Case remanded.