Commonwealth v Butler

This is an appeal from a decision of Judge Moore, sitting as a Judge of County Courts at Melbourne. He had before him a claim by Elvee Margaret Butler, the widow of Kenneth Kendall Butler deceased, for compensation under the Commonwealth Employees' Compensation Act 1930-1956. The matter came before his Honour by way of appeal under s. 20 of the Act from a decision of the Commissioner for Employees' Compensation. His Honour made an award in favour of the claimant and her infant daughter, and the Commonwealth appeals to this Court. His Honour was exercising federal jurisdiction, and the appeal lies by virtue of s. 39 (2) (b) of the Judiciary Act 1903-1955 Cth and s. 74 of the County Court Act 1928 Vict.: see The Commonwealth v. Anderson [6] ; Goward v. The Commonwealth [7] .

1. (1957) 97 C.L.R. 345. 2. (1957) 97 C.L.R. 355.

The only relevant provisions of the Commonwealth Employees' Compensation Act are contained in s. 9 (1) and the first schedule. Section 9 (1) provides: "If personal injury by accident arising out of or in the course of his employment by the Commonwealth is caused to an employee, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the first schedule to this Act." Clause (1) of the first schedule provides for the amount or rate of compensation to be paid (a) "where the death of the employee results from the injury", and (b) where the employee is totally or partially incapacitated for work by the injury.

The deceased man was at all material times employed as a clerk in the Department of the Navy. He died on 12th July 1957 as the result of a coronary occlusion. He had suffered in the course of the preceding five years or thereabouts three attacks of a similar nature, and it is necessary to refer briefly to the circumstances of each of the four occlusions, the last of which was fatal.

The first occasion was in April 1952. It would appear that before this date the health of the deceased had appeared to be normal, but on a day in that month he complained in the morning that he had been awake during the night with a severe chest pain, and his wife summoned a doctor. He did not go to work on that day, and was away from work for about three months. At the end of that time he appeared to have recovered his former health. The second attack occurred in September 1955. He went to work as usual on that day. Before leaving home in the morning he had complained that he "did not feel very well", and during the morning he complained of a feeling of "listlessness", and of pain in the chest and difficulty in breathing. He went home about lunch-time, and his wife helped him to bed and telephoned for a doctor. On the doctor's advice he entered Prince Henry's Hospital, where he remained for about three weeks. After this he remained at home until 23rd December 1955, when he suffered a third attack and, on his doctor's advice, entered Prince Henry's Hospital again, where he again remained about three weeks. After that he remained at home until he returned to work in February 1956. During the next eighteen months or so, his wife said, he complained at times of the pain in his chest, and, as time went on, these complaints became more frequent. He remained at work, however, until 10th July 1957. On that day he appears to have returned home at the usual hour saying that he did not feel very well. During the evening he had another attack of severe pain, and on the morning of the 11th his wife summoned the doctor, on whose advice he remained at home in bed. In the afternoon of the 12th, being still in bed, he complained that the pain was very severe, and the doctor was again summoned. Before the doctor arrived, however, he died.

It is at least doubtful whether the above history discloses any-where an injury by accident arising either out of or in the course of the deceased's employment: see The Commonwealth v. Ockenden [1] . The case has, however, been conducted throughout on the assumption that the illness which affected the deceased while he was at work in September 1955 did amount to an injury by accident arising in the course of his employment. The ultimate question in the case is, therefore, whether his death in July 1957 "resulted from" that assumed injury. The learned judge from whom this appeal comes, after hearing a good deal of medical evidence, held that the respondent claimant was entitled to compensation. His conclusion is summed up in the following passage: "I find on the probabilities that the occlusion suffered by the deceased in September 1955 was a contributing cause to the death of the deceased. It was not a contributing cause to the final occlusion, but I am taking it that it is sufficient if the earlier occlusion was a contributing cause to the death of the deceased, and on the probabilities I find that it was. That being so, the appellant is entitled to compensation". His Honour's decision is challenged on two grounds. It is said that there is no evidence or insufficient evidence to support the finding of fact contained in the passage quoted. It is said also that, even if that finding be accepted, it is insufficient to establish liability on the part of the appellant to pay compensation.

Dr. Forster, who attended the deceased at his home was not called as a witness, but three specialist witnesses were called - Dr. Bottomley and Dr. Rose for the claimant, and Dr. Rothstadt for the Commonwealth. Dr. Bottomley had attended the deceased in Prince Henry's Hospital. He saw him first after his admission in September 1955, and diagnosed the case as one of a "relatively serious" coronary occlusion. The patient made a "fairly good recovery", and was "almost normal" when he went home, but Dr. Bottomley was of opinion that he was suffering from a progressive disease (atheroma) of the coronary vessels. He was "sure that it was a progressive disease that he had". He saw him again in January 1956, and was of opinion that he had suffered another coronary occlusion. He saw him for the last time at the end of April 1957, and was not then able to detect any deterioration in his condition. The onset of the severe pain in the afternoon of 12th July 1957 marked, in his opinion, the beginning of a fatal coronary occlusion. Asked whether he believed there was a connexion between his death and what occurred in September 1955, he said that he believed there was, and he explained this by saying: - "I believe that the attacks of coronary occlusion or myocardial infarction that this man had had each resulted in the death of a considerable area of heart muscle and that each of these events reduced the efficiency of his heart muscle as a whole. I believe that had he not had this damage to his heart muscle, then he most probably would have survived the final occlusion. I say that on the probabilities it is the usual thing for a patient to recover from his first occlusion". His Honour said: - "In other words, if there had not been an infarction in 1955, the doctor thinks he would have survived the one in 1957". The witness answered: "That is so". It would appear that a first coronary occlusion is fatal in a little less than twenty-five per cent of cases. The doctor believed, he said, that each occlusion before the fatal one "contributed" to the ultimate death of Butler, each being due to a progressive condition of atheroma, which had been present for a number of years before the first occlusion in 1952.

Dr. Rose's evidence agreed generally with that of Dr. Bottomley. Asked whether there was, in his opinion, a connexion between the attack of September 1955 and the fatal attack of July, 1957, he said that he believed that there was. He said: " it is usual for a person suffering his first attack of myocardial infarction to recover. The incidence of a fatal outcome varies in different reported studies, but it is of the order of seventeen to twenty-five per cent of people die in their first attack, but when you come to the second attack a somewhat greater percentage die, and with the third attack and the fourth attack increasingly more. Each attack which occurs reduces the functional capacity of the heart and also leaves surviving a decreasing amount of functioning tissue". Dr. Rothstadt disagreed with the other doctors as to the suggested connexion between the several occlusions. His view may, I think, be fairly summed up by saying that he regarded the view expressed by Drs. Bottomley and Rose as representing a possibility, but thought that it was all largely a matter of speculation and "hypothesis".

When the learned judge says that he finds on the probabilities that the occlusion suffered by the deceased in September 1955, was "a contributing cause to his death", I take his Honour to mean no more and no less than that he accepts the evidence of Dr. Bottomley and Dr. Rose. The real question in the case is, therefore, whether that evidence justifies an ultimate finding that the death of the deceased "resulted from" the occlusion of September 1955 within the meaning of the first schedule to the Commonwealth Act. I do not think that it does.

In order to answer the question, it is necessary to see just what the evidence amounts to. It appears from it that a coronary occlusion is a total or partial obstruction of a coronary artery, which is caused or accompanied by arterial atheroma or sclerosis. The atheroma or sclerosis is normally progressive, and was progressive in this case. It had in fact commenced in this case some years before the first attack, which took place in 1952. A coronary occlusion may or may not be fatal. A first occlusion is fatal in rather less than twenty-five per cent of cases. An occlusion which is not fatal will generally, if not always, cause damage to the heart muscle, and this damage is not repaired in the course of nature. This fact does not make it more likely that a first non-fatal occlusion will be followed sooner or later by another occlusion or other occlusions, but it does make it more likely that, if a later occlusion does occur, it will prove fatal. In other words a patient may recover from a series of occlusions, but each one of the series will normally have effects on the heart muscle which increase the degree of probability that the next will cause his death.

The above does not represent the views of Dr. Rothstadt. But it does, I think, fairly summarize the effect of the expert evidence which must be taken to have been accepted by the learned judge. On that expert evidence and on the facts of the case, it would, I think, be a misuse of language to say that Mr. Butler's death "resulted from" the coronary occlusion which he suffered in September 1955. It is clearly involved in the evidence of Dr. Bottomley and Dr. Ross that each occlusion is an independent event or episode, from which the patient may recover or from which he may die. Dr. Bottomley himself said that what proved to be the final occlusion could have killed the deceased irrespective of any previous history of occlusions, and irrespective of whether he had areas of heart muscle affected by previous occlusions or not. That each occlusion is an independent episode is not the less true because each may proceed from a predisposing arterial condition, or because each may be a priori more likely to cause death than its predecessor. The only conclusion open on the evidence is, in my opinion, that Mr. Butler recovered from an occlusion in 1952, and from two more in 1955, but that death resulted from a fourth which occurred in 1957. Dr. Bottomley himself said that he had made "a fair recovery" - "a fairly good recovery" - from the attack of September 1955.

The expression "contributing cause to the death", which was used by his Honour in giving the reasons for his decision, and which was the expression put to Drs. Bottomley and Rose and assented to by them, was probably taken from the opinion of Lord Loreburn L.C. in Clover, Clayton & Co., Ltd. v. Hughes [1] . His Lordship said: "It seems to me enough if it appears that the employment is one of the contributing causes without which the accident which actually happened would not have happened, and if the accident is one of the contributing causes without which the injury which actually followed would not have followed" [2] .

1. (1910) A.C. 242. 2. (1910) A.C., at p. 245.

That language was used, as its terms indicate, with reference to a different question from that which arises in the present case. This was explained by Cozens-Hardy M.R., and Fietcher Moulton L.J., in Noden v. Galloways Ltd. [1] . That question might have arisen here if the final and fatal occlusion had occurred in the course of the deceased's employment, and the employer had sought to escape liability on the ground that death would not have occurred if it had not been for a prior occlusion or prior occlusions which did not occur in the course of any employment. It was in the course of stating the answer to such an argument that Lord Loreburn used the expression in question. In the present case the evidence could not be said to establish that any prior occlusion "contributed to" the death in the sense that the death "resulted from" it - which is the only relevant sense.

I agree that the appeal should be allowed. The judgments of my brethren cover the case, and there is nothing that I wish to add to them.

This is an appeal from an order of the County Court made in the exercise of the jurisdiction conferred upon it by s. 20 of the Commonwealth Employees' Compensation Act 1930-1956. By the order in question it was adjudged that the respondent was entitled to recover the sum of £2,540 as compensation in respect of the death of her husband who, in his lifetime, was a clerk in the Navy office in Melbourne. The deceased died on 12th July 1957 and the critical question was whether his death resulted from personal injury by accident arising out of or in the course of his employment. This, of course, is a question of fact involving a consideration of the medical history of the deceased so far as it appears in the evidence and an examination of the inter-relationship of events and incidents thereby disclosed.

It is beyond question that as early as April 1952 the deceased was afflicted by a diseased condition of the coronary arteries which the medical evidence specified as arteriosclerosis and atheroma. It was of a progressive character and manifested itself in increasing thickening and hardening of the arteries and a narrowing of the lumina of those vessels. Apparently the first indication of the fact that he was afflicted with this form of disease came in April 1952 when the deceased suffered a coronary occlusion. According to the respondent the deceased, one morning, complained of a sleepless night brought about by "a bad pain" across the chest and in the left arm. Upon medical advice he was, thereafter, absent from work for about three months but it was said that when he resumed work he had, to all appearances, recovered his former health. There was no further interruption to his working life until September 1955 when he suffered a further coronary occlusion and he was then sent to hospital where he remained for a period of three weeks. Following upon hospital treatment he underwent a period of convalescence at home but on 23rd December 1955, and before he had resumed work, he suffered a further occlusion. This was again manifested by pain in the chest and the left arm. The deceased was again sent to hospital where, again, he remained for three weeks and, thereafter, he returned to work in February 1956. After he had resumed work there were occasions when he complained of pain in his chest and these occasions became more frequent as time went on. By July 1957, it is said, his complaints were almost of daily occurrence and on 10th July 1957 he came home from work "not feeling very well". That night he experienced severe chest pains and Dr. Forster was called to see him the following morning. The deceased remained in bed during that and the next day and during the afternoon of the 12th July Dr. Forster was again called in as the deceased said the pain was "very severe". He died, however, before the doctor arrived and it is common ground that he had suffered a further, and final, occlusion.

At this stage it is necessary to mention that the respondent's claim was based upon the assertion that the occlusion which occurred in September 1955, constituted an injury by accident arising out of or in the course of the deceased's employment. Further, it is claimed, the deceased's death, in the terms of the statute, resulted from this injury. The evidence relating to this occurrence shows that before leaving for work one morning during the month of September 1955 the deceased complained that he was not feeling very well. Later during the morning and whilst he was at work he complained of pains in the chest and the left arm and about lunch time he returned home in a taxicab. It is said that when he arrived home he looked "very ill" and that he had a bad colour. He was assisted to undress and went to bed and thereafter, as previously related, he was admitted to hospital.

From this brief statement of what occurred on that occasion it will be seen that great difficulty might have been experienced by the respondent in establishing that the deceased sustained an injury by accident arising out of or in the course of his employment (cf. The Commonwealth v. Ockenden [1] ) but at the hearing in the County Court this issue was conceded by the appellant in the respondent's favour. Likewise, upon this appeal, we are asked by both parties to consider the case upon the hypothesis that the deceased in September 1955 suffered such an injury by accident and to confine ourselves to the question whether the deceased's subsequent death can and should, upon the evidence, be held to have resulted from this cause.

For the respondent it is asserted that there is abundant evidence to support an affirmative conclusion to this inquiry. Further, it is contended, that is the conclusion to which we should come upon an examination of the evidence. The contentions advanced in support of these propositions involve a series of steps, the first of which, as already appears, is conceded. By concession the deceased, nearly two years before his death, suffered an injury by accident arising out of or in the course of his employment. This injury, which was in the form of a coronary occlusion, not only incapacitated him but also according to the medical evidence must have resulted, or, at least, probably did result, in some physiological change in some part of the heart muscle. According to the medical evidence a coronary occlusion resulting in a shutting off of the supply of blood to the heart muscle or some part of it frequently results in the death of some part of the muscle. By this I understand that some part of the heart muscle may lose its elasticity and assume a fibroid condition. Then, it is said, the resultant impairment of the efficiency of the heart muscle makes it less likely that the victim will withstand a further occlusion. If he does there will, or there probably will, be further impairment of the heart muscle and an increased risk that any further occlusion will be fatal. As Dr. Rose put it "it is usual for a person suffering his first attack of myocardial infarction to recover The incidence of fatal outcome varies in different reported studies, but it is of the order of seventeen to twenty-five per cent of people (who) die in their first attack, but when you come to the second attack a somewhat greater percentage die, and with the third attack and the fourth attack increasingly more". This is but a brief account of the medical evidence but it is, it seems to me, a sufficiently full statement of the grounds upon which medical witnesses were able to recognize a "connection" between the coronary occlusion of September 1955 and the death of the deceased. But at the same time, it should be said, the medical witnesses did not by any means discount the possibility that what occurred in July 1957 may well have proved fatal even if it had not been preceded by three other occlusions.

As we have already said, the critical question is a question of fact and one real difficulty in the case is that the evidence concerning the condition of the deceased from time to time is of a very general and indeterminate character. In particular the evidence does not disclose the degree of damage caused by the final, or indeed, by any occlusion. Whether or not the final occlusion was of such a character as to be calculated to result in death irrespective of the residual effects of the earlier occlusions is, at the best, very much a matter of speculation. And the nature and extent of these residual effects were also a matter of speculation. But upon evidence that some permanent damage frequently occurs as the result of a coronary occlusion, that a first occlusion is not generally fatal and that the risk of death increases with successive occlusions, we are asked to find that the deceased's death resulted from the occlusion of September 1955.

In order to prove that death has resulted from an injury it is necessary to establish a causal connexion between the particular injury and the death in question. So much is, of course, beyond doubt. So also is the fact that a particular death may result from more than one cause. This, of course, is a very general way of stating the problem but reference to a few of the countless cases, dealing with an infinite variety of circumstances, in which the relationship of "cause" to "effect" had been the subject of discussion, reveals the difficulty of formulating in less general terms any criterion capable of ready application to any given set of facts. But, notwithstanding the many difficulties in the way of attempting to explain and simplify the legal concept of "cause" one thing is certain and that is that the legal concept is vastly different from the philosophical concept (see the discussion in Fitzgerald v. Penn [1] ). The legal concept looks to so-called "immediate" or "direct" or "proximate" causes rather than to antecedent and predisposing circumstances. But at the same time an "effect" may be caused, in the legal sense, by circumstances apparently remote for the chain of causation may be shown to have continued unbroken by any other intervening cause to the effect in question. It requires but little reflection to appreciate that the relationship of cause to effect must be a matter for particular consideration in every case and that it is impossible to substitute for the word "cause" any other expression or formula capable of providing a simple solution in all cases where difficulties arise. It should, however, be said that the cause of an event is not established in the legal sense by showing, without more, that in the absence of a proved set of circumstances the event would or may not have happened, or, that a proved set of circumstances, in the widest sense, contributed to the happening of the event.

It was because the learned county court judge thought that the occlusion of September 1955 contributed to the death of the deceased that he held that the respondent was entitled to recover. The question was, as he saw it, "Did that occlusion contribute to the death of the deceased in July 1957?". His analysis of the evidence shows that he answered that question in favour of the respondent because he thought it probable that some portion of the deceased's heart muscle had sustained permanent damage as a result of the September occlusion and that this circumstance contributed to the development of a condition which made it less likely that he would withstand any further attack. According to his Honour this damage "was not a contributing cause to the final occlusion" but it was, he thought, sufficient to enable him to say that "the earlier occlusion was a contributing cause to the death of the deceased".

In my opinion this finding of fact was quite insufficient to enable it to be said that the death of the deceased resulted from the occlusion of September 1955. Nor was it sufficient to enable it to be said that it contributed in any material sense to his death. At its highest all that is involved in his Honour's finding is that probably that occlusion caused some, though unspecified, permanent injury to the heart muscle which, in turn, assisted in producing a condition which made it less likely that the deceased would survive what proved to be the final occlusion. The picture was put in this way by Dr. Bottomley: "I believe that the attacks of coronary occlusion or myocardial infarction that this man had had each resulted in the death of a considerable area of heart muscle and that each of these events reduced the efficiency of his heart muscle as a whole. I believe that had he not had this damage to his heart muscle, then he most probably would have survived the final occlusion. I say that on the probabilities that it is the usual thing for a patient to recover from his first occlusion". Such a view of the facts was, for the reasons which already appear, quite insufficient to justify the award.

There were, however, other difficulties in the way of the respondent for when the evidence is examined it is seen that there is not the slightest evidence of what, if any, permanent damage was produced by the September occlusion. So far as the evidence goes "he made a fairly good recovery from that" and x-ray and electrocardiogram examinations in November 1955 "showed only minor abnormalities" and that the condition of his heart was "almost normal at that time". Upon this evidence it is quite impossible to regard the September occlusion as the cause, or a cause, of his subsequent death. On the contrary if the final occlusion be regarded as but an incident associated with a progressively degenerating condition and a cause be sought beyond that occlusion it is to his coronary disease that his death must be attributed and not to any one of the incidents which occurred in the course of that disease. Finally, in the absence of any evidence capable of indicating the degree or severity of the damage done by the final occlusion it is quite impossible to say that the earlier occlusion caused or, in any material way, contributed to his death.

For these reasons I am of the opinion that the appeal should be allowed and the order of the county court judge set aside.

In all the various forms which workers' compensation legislation takes the liability of the employer arises when there are, firstly, a connexion between the worker's employment and the injury he suffered, and, secondly, a connexion between that injury and his incapacity or death. But the precise nature of the two connexions and of the causal element in each necessary to entitle the worker to compensation depend upon the words of the particular statute under which the question arises. In this case the relevant statute is the Commonwealth Employees' Compensation Act 1930-1936. And in this case it is only the second connexion which is in question. It was conceded at the hearing, on somewhat slender grounds it seems to me, that the coronary occlusion which the deceased suffered in September 1955 was, within the meaning of the Act, a personal injury by accident arising in the course of the deceased man's employment which would entitle his widow to compensation if his death resulted from it. It was not disputed before us that the appellant was bound by that concession. So that the only question in the case was, and is, whether the death of the deceased in 1957 resulted from the occlusion he suffered in September 1955.

The learned judge was, I think, justified on the medical evidence in finding that that occlusion was "a contributing cause to the death of the deceased", in the sense in which he used the expression "contributing cause". And, from the form which the examination of the witnesses took, he seems to have thought that this was the issue which he had to try. But it was not. It seems likely that the use of the expression "contributing cause" distracted his attention from the relevant words of the statute, which are "where the death of the employee results from the injury". The real question for this Court is, therefore, whether there was evidence that, within the meaning of the statute, the death of the deceased resulted from the occlusion of September 1955.

The essential facts are that the deceased suffered from arterial atheroma or sclerosis, a progressive pathological condition in which a coronary occlusion is always at least a possibility. In fact he had had three occlusions before the one which in July 1957 proved fatal. The first was in 1952. Then, in September 1955, there was the one which is to be taken as having, in a relevant sense, arisen in the course of his employment. He was in hospital for about three weeks on that occasion, and after leaving hospital remained away from work. Before he was able to go back to work he had had another occlusion, in December 1955. However, by February 1956, he had recovered from these attacks, in the sense that he returned to work and continued at work until 10th July 1957. He became ill that night and died on 12th July after a final and fatal occlusion.

On those simple facts the ordinary answer of an ordinary man to the question "did the death of the deceased result from the occlusion of September, 1955?", would surely be: "No. He did not die from that occlusion. He died two years later from another occlusion."

But once the simple question is elaborated by attempted paraphrases and explanations of the words "results from", logical and philosophical difficulties emerge however much judges and lawyers may assert that they are eschewing all philosophical consideration of the chain of causation. Attempted explanations of causation and consequence can, I feel, be as unhelpful and unhappy as definitions of reasonable doubt. In the search for some grounds for isolating a particular event from the totality of circumstances preceding a later event, various adjectives, such as "direct", "proximate", "decisive", "immediate", "effective" and "real," have been pressed into service to qualify "cause". From these there is an easy drift to such term as "materially contributing factor". But such formulae do not really dispel the difficulty; and they become especially unsatisfying when death is the alleged consequential event. As death sooner or later is inevitable for every man, it is impossible to ask the question - which in relation to other matters may be helpful, although not decisive - namely, whether the alleged consequence would necessarily occur at all without the happening of the earlier event to which it is sought to attribute it. Moreover, in relation to death, words such as "proximate" and "direct", as tests for choosing some one link in a chain of causation, introduce a special difficulty. For at the point of death ultimate cause and consequence tend to become indistinguishable. It is, for example, easy to say that a man's death resulted from a gunshot wound. In such a case a criminal jury might properly say that death was the result of a felonious act; yet a physician would equally properly say that the wound caused loss of blood, and that the death resulted from loss of blood. And the inquiry could be pushed a stage further by saying that the loss of blood operated to produce a fatal syncope. It is for this reason that the manner or method by which some particular injury actually operates in relation to the circulatory, respiratory or nervous system may for a physician constitute the proximate cause of death. For example, in Taylor on Medical Jurisprudence asphyxia is spoken of as the "actual cause" of death by strangulation; and there are in that work many other illustrations of physiological mechanisms, which, brought into operation by various events, end in death, being treated as its cause.

A coronary occlusion results in death when it causes such a degree of infarction that the heart ceases to function. Is the occlusion, the infarction or the cessation of the heart-beat the proximate cause of death? In the last analysis it is death itself that slits the thin-spun life.

Yet the application of the statute to the facts of this or any other case does not depend upon metaphysical speculation or the actual physiological circumstances accompanying death. It depends upon asking only whether death resulted from the injury (in this case from the occlusion of September, 1955) in the ordinary acceptance of those words. The question obviously involves an idea of causal sequence. But it tends to misconception if the question that the Act postulates, namely "did death result from the occlusion", be inverted to be "was the occlusion the cause of death". The inversion is merely linguistic; yet in its inverted form the question somehow seems more prone to attract to its answer expressions such as "contributing factor", which are, it seems to me, only attempts to define or explain an abstract idea by phrases in which the same idea lurks. The words of the statute are more easily applied without exegetical glosses.

The evidence, I think shows that the deceased died from the effects upon his heart of the occlusion of June 1957; that this was a separate and distinct event from the occlusions he suffered in 1955; that each of the earlier occlusions may well have made it more likely that a later occlusion would be fatal, because each probably left some area of heart muscle impaired; but that the occlusion of September 1955 and that of July 1957 were none the less separate and distinct events. An impaired heart resulted from the former. Death resulted from the latter. In my view there was no evidence on which the judge's finding can, properly applying the words of the Act, be sustained, and the appeal should be allowed.