Ellis v Fairfield Shipbuilding and Engineering Company, Ltd
| Jurisdiction | Scotland |
| Judgment Date | 27 November 1912 |
| Date | 27 November 1912 |
| Docket Number | No. 30. |
| Court | Court of Session |
Lord President, Lord Kinnear, Lord Johnston, Lord Mackenzie.
Workmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), see. 2 (1)—Delay in giving notice and making claim—‘Mistake or other reasonable cause.’
In an arbitration under the Workmen's Compensation Act, 1906, the arbitrator found that the claimant alleged that he was injured by an accident on 1st June 1911; that thereafter he suffered from pain in his neck and shoulders, which he attributed to the accident; that on 5th August he consulted a doctor, who diagnosed his trouble as, and treated him for, muscular rheumatism; that on 11th November the claimant left his employment and thereafter was treated for severe strain of the neck; that on 13th December he consulted another doctor, who told him that he was suffering from partial dislocation of the head from the spine, and advised him that his case was dangerous and required treatment in a hospital; that in January 1912 (i.e., after he had left his employment and more than six months after the accident) he for the first time gave notice of the accident to his employers and claimed compensation from them.
Held that, as the delay in giving notice and claiming compensation was due to the workman's ignorance of the serious nature of his injury, it was occasioned by ‘mistake or other reasonable cause,’ within the meaning of sec. 2 (1) of the Act, and so was not a bar to the maintenance of proceedings for compensation.
Workmen's Compensation Act, 1906 (6 Edw. VII. cap. 58)—Arbitration—Procedure—Preliminary defences—Duty of arbitrator to dispose of whole case.
Where an arbitrator had allowed a separate proof on preliminary defences and had issued findings thereon without having heard the case as a whole, opinions that, there being no exceptional circumstances calling for the procedure followed, the arbitrator ought to have heard and disposed of the case as a whole.
Observations per Lord Kinnear in Rankine v. Alloa Coal Co., LimitedSC, (1903) 5 F. 1164, at p. 1169, approved.
This was a note presented by William Ellis, shipwright, Govan, for an order on the Sheriff-substitute (Lyell) at Glasgow to state a case in an arbitration under the Workmen's Compensation Act, 1906, between the pursuer and the Fairfield Shipbuilding and Engineering Company, Limited, Fairfield Works, Govan. In the arbitration the pursuer claimed compensation in respect of injuries alleged to have been received on 1st June 1911 while at work in the defenders' employment.
The defenders pleaded, inter alia;—(1) Notice of the accident to the pursuer not having been given to defenders as soon as practicable after the happening of said accident, and the defenders being prejudiced by want of such notice, the pursuer is barred from insisting in the present proceedings. (2) The pursuer having failed to claim timeously from the defenders is barred from insisting in the present Proceedings.*
The Sheriff-substitute, having allowed the defenders a proof as to the alleged want of notice and claim, found ‘that the failure to make a claim within the statutory period was not occasioned by mistake or other reasonable cause,’ and dismissed the application.
The pursuer requested the Sheriff-substitute to state a case for appeal. The Sheriff-substitute refused, and the pursuer presented this note for an order on the Sheriff-substitute to state a case.
Appended to the certificate of refusal to state a case was a statement by the Sheriff-substitute in the form of a proposed stated case, which, for the purposes of argument, was adopted by parties at the bar.
The proposed case stated:—
‘Having considered the cause together with the proof led, and heard parties' procurators, I found the following facts to be established:—(1) That it was alleged that the accident in question occurred on 1st June 1911. (2) That the appellant remained in the employment of the respondents until 11th November 1911, when he left and did not return. (3) That no notice of the alleged accident was given and no claim for compensation made until 30th January 1912. (4) That it was practicable for the appellant to have given notice of the accident immediately after the happening thereof and before he left the employment.
‘In these circumstances I found in law that these proceedings were not maintainable unless it should be proved (a) that the respondents were not prejudiced by the want of timeous notice, and (b) that the appellant's failure to make a claim within six months was occasioned by mistake, absence from the United Kingdom, or other reasonable cause; and in this connection I found further in fact:—(5) That it was not proved that the respondents were not prejudiced by the appellant's failure to give timeous notice; but, on the contrary,
that they were so prejudiced by being deprived of the opportunity, of which they would have availed themselves, of having the appellant medically examined. (6) That from the date of the alleged accident up to 5th August 1911 the appellant suffered pain in his and neck and shoulder, which he himself attributed to the result of the accident. (7) That on 5th August 1911 he consulted a doctor at the Western Infirmary, who diagnosed his disease as, and treated him for, muscular rheumatism of the right shoulder. (8) That up to 11th November 1911 the appellant remained in his employment, being off work for certain short periods during that time, but on the said 11th November 1911 he finally left his employment and did not thereafter return to work (it is alleged that on that day he was attacked by severe pains in the neck, but this was not proved, the appellant himself not being examined as a witness). (9) That the appellant was thereafter treated by a doctor for a severe strain of the neck up to 13th December 1911. (10) That on 13th December 1911 the appellant consulted another doctor, who found, and informed the appellant, that his head was partially dislocated from the spine, and recommended his removal to the infirmary for treatment. the said doctor's opinion being that the appellant was then in a dangerous condition. (11) That, at the request of the appellant, respondents obtained for him free removal in an ambulance of the St Andrew's Ambulance Association to the infirmary on 20th December 1911. (12) That the respondents are in the habit of obtaining this privilege for their workmen in all cases where removal to the infirmary is ordered whether on account of accident or disease. (13) That some time in January 1912 the appellant's wife intimated, for the first time, to an official of the respondents' Company that the appellant claimed compensation, in respect that his then condition was attributable to the alleged accident on 1st June 1911. (14) That a claim, signed by the appellant, was made on 30th January 1912 for compensation for injury by accident not on 1st June 1911, but “on the middle of June.”
‘I found further in fact that, although the appellant may have been under a mistake as to his symptoms and condition between 5th August 1911 and 13th December 19ll, he was under no mistake, but himself attributed his condition to the result of the alleged accident from the date thereof until 5th August 1911 and from 13th December 1911 to 30th January 1912.
‘I therefore found in fact and law that the failure to make a claim within the statutory period was not occasioned by mistake or other reasonable cause, dismissed the application, and found the respondents entitled to expenses.’
The proposed questions of law for the opinion of the Court were:—‘(1) Was the arbitrator right in holding that these proceedings were not maintainable unless it should be proved (a) that the appellant's failure to give notice as soon as practicable and before leaving his employment was not to the prejudice of the respondents; and (b) that his failure to make a claim within six months of...
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