sation. This finding is final, subject to an error in law. It was, however, argued on behalf of the appellants that there was no evidence from which it could competently be found that the incapacity of the respondent was attributable to an injury by accident. The Court of Session affirmed the determination of the sheriff-substitute, and it is against this decision that the appeal is brought.

My Lords, I cannot doubt that there was evidence from which the sheriff-substitute could competently find that the incapacity of the respondent was attributable to an injury by accident, using the word "accident" in its ordinary natural sense. The immersion in water, under conditions of extreme and exceptional exposure to cold and damp, may be regarded either as an unforeseen, or an untoward, event, and in either alternative as an accident. This being so, it was within the competency of the sheriff-substitute to find in favor of the respondent. The miscalculation of conditions, or carelessness as to conditions, is a common cause of accident, as in the case of a person being accidentally drowned through miscalculation of the depth of the water into which he has entered, or through carelessness in making no calculation as to its depth. There is no error in law, and this ends the case. The decision of the Court of Session should be affirmed, and the appeal dismissed with costs.

[12] Lord Wrenbury: My Lords, in this case the workman sustained "personal injury" in the form of a physical ailment or illness, namely, subacute rheumatism. For the purpose of the construction of the act, it must be immaterial whether the "personal injury" is death, or the loss of a limb, or disease, or illness. In each case the personal injury is not, and cannot be, the accident. It is the result of the accident. The phrase in the act is "personal injury by accident." In this and in every case the inquiry must be whether the personal injury which has been sustained was sustained in such a state of circumstances as that it was sustained "by accident." I call particular attention to the fact that the language of the act is not "personal injury by an accident," but "personal injury by accident." This means, I conceive, personal injury, not by design, but by accident, by some

mishap unforeseen and unexpected; accidental personal injury. While, on the one hand, it is true that the personal injury cannot be the accident which satisfies the phrase "by accident," yet, on the other hand, it is at the same time true that the result is a factor which assists in determining whether the injury was sus tained by accident or not. If a man undresses on the beach in order to enjoy a bath in the sea, goes voluntarily into the water, and is drowned by reason of the existence of a strong current, no one could deny that his death was accidental, that his death was by accident. In this case his going into the water was not accidental; the existence of the current was not accidental; but there was a factor which caused his death to be "by accident," and that was that unintentionally-perhaps by ignorance he miscalculated the forces with which he had to do; he did not know of the current, or he thought that he was a strong enough swimmer to cope with it. He was wrong. The mishap which resulted from his bathing in this dangerous place was accidental. He had no intention or thought of going to his death. No other person intervened to conduce to the result. The sufferer's death was an unexpected event, an untoward result; it was by accident. If he had not been drowned it would be accurate to say that happily there had been no accident. That which I endeavor to express is perhaps best summarized by saying that although the “personal injury" (the death, or disease, or whatever it is) cannot be the accident, [13] yet the contraction of the disease or the incurring of the death may be by accident. The fact of disease is not an accident, but the contraction of disease may be by accident. Section 8, subsec. 10, in using the words "if the disease is a personal injury by accident," means, I think, "if the disease is a personal injury incurred by accident."

My Lords, after these general observations I do not feel that any useful purpose will be served by traveling through the numer ous cases which have been cited. The question is whether such facts have been found as that the arbitrator could from those facts arrive at the conclusion that the rheumatism was contracted under such circumstances as that the personal injury was by accident. The only finding which I need set out is: "9. That the rheumatism from which the respondent suffered was caused by the ex

treme and exceptional exposure to cold and damp, to which he was subjected on the occasion in question." Suppose the events had been that under directions given by the employer the man had gone into the water, and it had proved unexpectedly to be 8 feet deep, and that he had been drowned. No one, I think, would dispute that his death would have been by accident. The accident would have arisen from miscalculation or ignorance as to the depth of the water, by reason of which the man was exposed to danger and was drowned. Is there any difference of principle between the case in which the water went over his head and caused death, and the case in which the water extended as high as his chest and caused rheumatism? I think not. In all these cases it is essential to bear in mind that the appellate judge has not to determine whether he would have arrived at the conclusion at which the arbitrator arrived, but has to see whether such facts are found as that the arbitrator could arrive at that conclusion. Here the sequence of the language in the case, after the finding which I have quoted, shows that the arbitrator's finding is that the rheumatism was an injury caused by the extreme and exceptional exposure to cold and damp; in other words, that the extreme and exceptional exposure to cold and damp was that which caused the personal injury to be by accident. I take this to mean that neither employer nor man anticipated that the cold and damp would have been so extreme as to cause the illness; that the exposure of the man to it was an untoward event; that [14] the result was unexpected; that the outcome was a mishap; and that consequently the injury was by accident. Whether I should have been of that opinion or not, I think the arbitrator could properly so hold.

I may add that the events of October 23 have, in my judgment, no bearing upon the matter. There was an accident on October 23, no doubt, but that accident caused nothing in the events of October 28. Suppose there is a railway accident by collision, and that a breakdown gang is sent to deal with the matter, and that a member of the breakdown gang is injured when dealing with it. The fact that he is sent to deal with the results of an accident by collision does not show that he suffered from the accident by collision. The fact that there was such an accident has no bearing

upon the question whether he was injured by accident or not. So here the fact that the water would not have been there if the pump had not accidentally broken down on October 23 has no elevance to the question whether on October 28 the man was the victim of an accident.

The conclusion at which I arrive is that upon the facts found the arbitrator could hold as matter of law that the injury was by accident. The appellant, I notice, by his supplementary statement, submits that the question is whether "it could competently be held by the arbitrator that the respondent's incapacity was attributable to an accident." By this divergence from the words of the act the appellant has, I think, fallen into an error which taints all the subsequent submissions in his case. In the next sentence he alters the language which he uses and adopts the language of the act, but seemingly he fails to notice that he has done so.

In my judgment the appeal fails and must be dismissed.

Interlocutor of the Second Division of the Court of Session in Scotland affirmed and appeal dismissed with costs.

Lords' Journals, March 6, 1916.

Agents for appellants: Beveridge, Greig, & Company, for W. T. Craig, Solicitor, Glasgow, and W. & J. Burness, W. S., Edinburgh.

Agents for respondent: Sewell, Edwards, & Nevill, for O'Hare, Lyons & Company. Writers, Glasgow, and J. Douglas Gardiner & Mill, S.S.C., Edinburgh.

Note.-Workmen's Compensation Acts: Rheumatism of sciatica contracted by workman as an "accident," or "personal injury.

For annotation on chill as "accident" within workmen's compensation acts, see Maguire v. Union S. S. Co. ante, 169.

It will be observed that in the reported case (GLASGOW COAL Co. v. WELSH, ante, 308) subacute rheumatism, caused by extreme and ex

ceptional exposure to cold and damp, to which a brusher in a mine was exposed while standing in a pit up to his chest for eight hours following instructions to bail out the pit, which was flooded by reason of the breaking down of a pump five days before, was held to have been occasioned by accident within the meaning of the Workmen's Compensation Act, providing for compensation in case of personal injury by accident arising out of and in the course of the employment; on the ground that although the breakdown of the pump was too remote to impart its accidental character to the injury, yet, aside from this, his injury, resulting from the exposure, was a mishap unforeseen and unexpected, and therefore an accident.

There is little direct authority on the question here considered. In Barbeary v. Chugg (1915) 8 B. W. C. C. 37, acute sciatica, developed by an unlicensed pilot, was held to have been caused by an accident arising out of his employment, where it appeared that after piloting a ketch out of a harbor on a day, in January when a heavy gale was blowing, he jumped into his own boat and alighted in an unsuitable place, so that the nose of the boat went under water and was partly filled, and he was nearly drowned and wetted to the thighs, and was pulled out by the captain of the ketch, and he subsequently got into his boat, baled it out, and rowed home, during the process of which he again got wet from the spray, and sciatica developed as a result of his wetting. Cozens-Hardy, M. R., said: "In getting off from the ketch, which is not a very big vessel, of course, I think the result of the evidence is that he jumped and alighted not in the best or most suitable position, but in the front of the boat, the result being that the boat went under water and became so nearly full that he was up to the thighs in water. The captain who saw this pulled him up again into the ketch, and said that he had had a narrow escape of being drowned. Then he got into the boat again and baled out the water, got free of the ketch, and rowed back to the quay. During that process, although he was wet up to the thighs by the first plunge, he got wet again with the spray. The result was that the doctor found him suffering from sciatica, and the judge awarded him certain sums during total and partial incapacity, and a suspensory payment of 1d. a week from that time, because one never could tell whether it would come on again or not. Now was there an accident? I certainly do not intend to affirm that because a pilot merely gets very wet in rough weather and suffers from it, that that is an accident or injury arising out of and in the course of the employment. There must be something distinet from the injury; one cannot disregard the words by accident.' Coyle v. John Watson [1915] A. C. 1, 30 Times L. R. 501, [1914] W. N. 195, 83 L. J. P. C. N. S. 307, 111 L. T. N. S. 347, 58 Sol. Jo. 533, [1914] S. C. 44, 51 Scot. L. R. 492, 7 B. W. C. C. 259.