Kitchen v C. Koch & Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Blanesburgh,Lord Warrington of Clyffe,Lord Atkin,Lord Thankerton |
| Judgment Date | 06 July 1931 |
| Judgment citation (vLex) | [1931] UKHL J0706-1 |
| Date | 06 July 1931 |
| Court | House of Lords |
[1931] UKHL J0706-1
House of Lords
Viscount Dunedin.
Lord Blanesburgh.
Lord Warrington of Clyffe.
Lord Atkin.
Lord Thankerton.
After hearing Counsel, as well on Tuesday the 9th, as on Thursday the 11th, days of June last, upon the Petition and Appeal of James Kitchen of 21 Pleasant Street, Dukinfield, in the County of Lancaster, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 24th of July 1930, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of C. Koch and Company, Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 24th day of July 1930, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Award of the Arbitrator, of the 25th day of April 1930, be set aside, and that the Cause be, and the same is hereby, remitted back to the said Arbitrator with a Direction to assess the amount of compensation due to the said Appellant: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Courts below, and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments.
My Lords,
My noble and learned friend Lord Dunedin, who was absent from a portion of the argument, desires me to say that he associates himself with this judgment.
This is an appeal against an Order of the Court of Appeal confirming the finding of an Arbitrator refusing compensation to the Appellant for disablement for an industrial disease on the ground that no timeous claim had been made. In order to obtain compensation for the injury caused by an industrial disease, two requisites are necessary. There must be a certificate by the certifying surgeon of the district that the workman is suffering from a disease mentioned in the third schedule of the Act or a disease which has been brought under the head of industrial diseases by an Order of the Secretary of State, and that he is thereby disabled from earning full wages in the work in which he was employed; and the disease must be due to the nature of the employment in which the workman was employed at any time within the twelve months previous to the date of disablement. All this is provided for by Section 43 of the Act and the Section goes on to say that the disablement shall be treated as the happening of the accident and that the date of the disablement shall be such date as the certifying surgeon certifies as the date on which the disablement commenced, or if he is unable to certify such a date then the date on which the certificate is given.
I may say in passing that I have purposely left out all reference to suspension under the regulations of the Factories and Workshops Act as these provisions have nothing to do with the questions in this case. But there is another requisite before compensation can be obtained and that is under the provisions of Section 14, which says:
"Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable unless notice of the accident has been given as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured and unless the claim for compensation with respect to such accident has been made within six months from the occurrence of the accident causing the injury ……"
Now it is clear that the terminus a quo for the running of the six months being the happening of the accident. it is impossible to make a claim in respect of an industrial disease until there has been a certificate, for it is the certificate alone which, so to speak, brings the accident into being.
Now as to the facts of the present case. For seventeen years up to June, 1928, the Appellant had been in the service of the Respondents as an operative cotton spinner. He ceased to be employed on the 13th June, 1928, on which day the Respondent's works were closed. He was never again employed by anyone. On the 24th July, 1929, he applied for and obtained what he thought was a certificate of disablement from the certifying surgeon of the district. The certificate was blundered in two ways. It certified that the disease from which he was suffering was "epithelioma of scrotum being one of the diseases to which the Workmen's Compensation Act applies". Now epithelioma of the scrotum is not an industrial disease; anyone may have it. The industrial disease from which as a fact the man was suffering was epitheliomatous cancer or ulceration of the skin due to tar, pitch, bitumen, mineral oil or paraffin, or some compound, product or residue of one or more of these substances. Secondly, the date of disablement was not specified and the words which have to be struck out in order to make the date of disablement the date of the certificate were only partially struck out.
On getting this certificate from the Trade Union Agent who was acting for the Appellant, the employers, after discussion, repudiated liability in respect that they thought that the certificate was a good certificate and that no date of disablement being specified the date must be the date of the certificate which was more than twelve months after he had left their service. The final repudiation was intimated on 1st September, 1929. The Appellant's Agent then woke up to the fact that the so-called certificate was no certificate at all, and after a delay for which no real explanation is given he applied again to the certifying surgeon on 19th November, 1929, for a certificate. The certifying surgeon again examined the Appellant and then sent another certificate. This time the certificate contained a proper description of the industrial disease, but it specified the date of the disablement as "the 22nd day of 1929." The agent sent it back to the surgeon who eventually sent it back dated 18th January, 1930, having scored out 1929 and inserted after the words "the 22nd day of" the words "May, 1929", thus fixing the date of disablement. On this a claim was made on 30th January, 1930.
Now taking the claim as made on the head of the certificate as dated 18th January, 1930, it is obvious that it is outside the six months from the date of disablement, viz., 22nd May, 1929. The six months expired on the 22nd November, 1929.
In the case of ( Moore v. the Naval Colliery Co. 1912 1.K.B. page 28), Cozens Hardy, M.R. expressed an opinion thus:
"Although I do not think it is necessary in the present case to decide this appeal on that ground, as at present advised. I am clearly of opinion that it is not possible to hold in the case of an industrial disease where, as the Act contemplates, the certificate may go back a long time, certainly twelve months, that a workman is disabled from presenting after the expiration of six months an application in which the date of the accident has to be stated when the certificate, which alone fixes the date of the accident, may fix it more than six months back."
My lords, I am not able to agree in this opinion. It would mean that in the case of industrial diseases the time limit for a claim is non-existent. It would perhaps have been better if Parliament, when it came to deal with industrial diseases, had modified the provisions as to the time limit for a claim, provisions which were made to fit ordinary accidents where no difficulty can arise. But it did not do so. It left the time limit expressed in Section 14 as it stands and I think we must apply that to the case of industrial diseases as best we may. I think that was the view of Moulton, L.J. in Moore's case. He thought the case of hardship could always be met by the provision of Section 14 (1) b. "The failure to make a claim within the period above specified shall not be a bar to the maintenance of such proceedings if it is found that the failure was occasioned by mistake, absence from the United Kingdom or other reasonable cause."
Accordingly the real and only question in this case is whether there has been here a reasonable excuse for not making the claim within the period specified. That was the case as it presented itself to the Arbitrator and to the Court of Appeal and they came to the conclusion that they could not so hold.
My Lords, I do not say that there is not difficulty but at the same time I have come, with reasonable satisfaction with my own judgment, to the opinion that there is enough to hold that there was a reasonable excuse. I am content to believe that the certifying surgeon appointed by the Government, in so far as professional skill is concerned, adequately fills his post, but as the filler up of a form he has shown himself a blunderer of the first water. He filled up the first certificate with a name of a disease which was not an industrial disease and he left it doubtful whether he was fixing the date of disablement or not. In the second certificate he put the date of disablement as "the 22nd day of 1929" and he took nearly two months to insert the word "May". Nor was the Trade Union Agent who conducted the case for the Appellant much better. He accepted the first useless certificate as if it was good and sent it to the employers. When he got it back again he realised it was bad, but for no real reason...
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