Gillespie v Convoys Ltd
| Jurisdiction | Scotland |
| Judgment Date | 16 June 1939 |
| Docket Number | No. 56. |
| Date | 16 June 1939 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Workmen's Compensation—Act 1925 (15 and 16 Geo. V, cap. 84), sec. 14 (1) (b)—Failure to claim compensation timeously—Mistake "or other reasonable cause"—Workman in hospital aware of right to claim but ignorant of time limit—Claim made personally immediately on discharge from hospital.
The Workmen's Compensation Act, 1925, sec. 14 (1), requires a claim for compensation to be made within six months of the occurrence of the accident causing the injury, but provides (b) that failure to make a claim within that period shall not be a bar to proceedings if it is found that the failure was occasioned by "mistake, absence from the United Kingdom, or other reasonable cause."
A dock labourer was injured by accident in the course of his employment on 1st October 1937, and on 5th October he was removed to a hospital, where he remained continuously until 4th April 1938, when he was discharged. On the following day he made in person a claim for compensation. The claim was the first claim made to the employers, and it was four days beyond the statutory time.
In arbitration proceedings brought by the workman it was established that he was aware of his right to compensation; that he knew within the first three months of his residence in hospital that intimation of the claim was necessary if he intended to claim compensation; that his repeated requests for discharge during that period in order that he might make a claim had been refused on the ground that he was not fit for discharge; that, at any rate after the first three months in hospital, there was nothing to prevent him from making a claim by letter within the prescribed period or instructing someone to do so; and that on his own admission the only reason for his not claiming within the six months was his ignorance of the statutory time limit.
Held that, on the facts disclosed, the workman had not established that his failure to make a claim within the prescribed period was due to a reasonable cause, the only reason for such failure being his ignorance of the statutory time limit; and, accordingly, that the arbitrator was right in dismissing the application.
In an arbitration under the Workmen's Compensation Act, 1925,1 in the Sheriff Court of Lanarkshire at Glasgow, between James Gillespie, dock labourer, and his employers, Convoys, Limited,
the Sheriff-substitute (M'Donald) dismissed the workman's claim for compensation in respect that it had not been made timeously, and, at his request, stated a case for appeal to the Court of Session.The stated case set forth, inter alia:—"(7) On 28th November 1938 evidence was led for both parties, after which procurators were heard and avizandum was made of the cause. (8) As a result of the said proof the following facts were found to be admitted or proved:—(a) that the appellant is a dock labourer, and resides at 25 Jordan Street, Glasgow, while the respondents are a limited liability company, carrying on business at Shieldhall Dock, Glasgow, S.W.1; (b) that on or about 1st October 1937 at about 3.30 p.m. the appellant was in the respondents' employment as a dock labourer in a shed at Rothesay Dock, Glasgow; (c) that on the said date and at said time, while the appellant was engaged in performing his ordinary duties in the said shed, he sustained injury to his left leg as a result of being run down by a mobile crane belonging to the respondents; (d) that the said injury to the appellant's left leg was a personal injury by accident arising out of and in the course of his employment with the respondents; (e) that as a result of the said personal injury by accident the appellant was totally incapacitated for work; (f) that the said personal injury by accident was not caused by any serious and wilful misconduct on the part of the appellant; (g) that after the said accident the appellant was removed to the Western Infirmary, Glasgow, where he received medical attention, after which he was removed to his own home in Glasgow; (h) that on 5th October 1937 the appellant was removed from his own home to Stobhill Hospital, Glasgow, on the advice of his own doctor; (i) that the appellant remained in Stobhill Hospital, Glasgow, from said 5th October 1937 until 4th April 1938; (j) that during the first three months the appellant was in Stobhill Hospital he suffered a good deal of pain and discomfort owing to the said leg injury; (k) that after the lapse of three months in the said hospital the appellant's pain and discomfort diminished so considerably as to enable him to be quite comfortable and able to attend to any personal matters requiring attention; (l)that the appellant was quite well aware from and after the happening of the said accident that he was entitled to compensation for same under the Workmen's Compensation Act; (m) that the appellant knew during the first two or three months he was in the said hospital that, if he intended to claim compensation under the Workmen's Compensation Act in respect of the said accident, it was necessary for him to intimate such claim to the respondents, and he repeatedly asked the doctor under whose care he was in hospital to discharge him from hospital in order that he might make said claim for compensation, but that on such occasions the doctor refused to do so on the ground that he was unfit for discharge; (n) that the appellant failed to make to the respondents or anyone on their behalf a claim for compensation with respect to said accident within six months from the occurrence of the said accident which caused the said injury to his left leg; (o) that after the appellant had been discharged from the said hospital on said 4th April 1938 he went on 5th April 1938 to the respondents' office, and intimated a claim for compensation; (p) that after the lapse of three months in hospital the appellant was not prevented from making the said claim for compensation either on account of the effects of the said injury or because of his being confined in hospital; (q) that there was nothing whatever to have prevented the appellant sending to the respondents a letter making the said claim within the said period of six months or instructing someone to do so on his behalf; (r)that on the appellant's own admission the only reason for his not sending the said claim to the respondents within the said period of six months was his ignorance of the provision that a claim had to be made...
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Pang Chen Suan v Commissioner for Labour
... ... 42 In James Gillespie v Convoys, Limited 1939 SC 568 (“ Gillespie ”) at 574, the Second Division of the Scottish Court of Session explained the rationale for the ... ...