LATE NATIONAL INSURANCE CLAIMS: CAUSE FOR DELAY

DOIhttp://doi.org/10.1111/j.1468-2230.1956.tb00366.x
Published date01 July 1956
Date01 July 1956
THE
MODERN LAW REVIEW
Volume
19
July
1956
No.
4
LATE NATIONAL INSURANCE CLAIMS
:
CAUSE
FOR
DELAY
CASE
law is made daily by administrative tribunals just as much
by the traditional courts.
A
deputy insurance commissioner has
recently drawn attention to this in a lecture,1 surveying decisions
under the national insurance and industrial injuries schemes.
The decisions are of importance to vast numbers of people, and
nearly everyone is a potential claimant. The results and the
reasoning leading to them ought to be subjected
to
the same intense
scrutiny
in
legal periodicals as is accorded to law-reports cases.
As
decided cases become more and more myriad
it
becomes more
and more difficult to make a start. There are many problems
calling for attention under the national insurance and industrial
injuries schemes alone. One
of
the most frequently occurring is
that of determining when a late claim should be allowed.
Among the commonest grounds for disallowing claims to insur-
ance benefit is that the claim was not made within the prescribed
time. While the prescribed time varies from one type of benefit
to another, the provision is common to all that
on
principle a late
claim results in forfeiture
of
benefit. But under the national
insurance scheme-
6‘
If
in
any case the claimant proves
.
.
.
(b)
.
.
.
that through-
out the period between the earlier date and .the date
on
which
the claim was made there was good cause for delay in making
such claim
.
.
.
he shall not
.
. .
be disqualified
.
. .
for
receiving any benefit to which he would have been entitled
if
the claim had been made
on
the said earlier date.”
Similarly, benefit under the industrial injuries scheme must
be
claimed within the prescribed time-
1
Safford,
The
Creation of Cnse
Law
(1954) 17
M.L.R.
197.
2
8.1.
1948,
No.
1041,
reg.
11
and 2nd Sched.,
as
enncted
by
8.1.
1952,
No.
1207,
reg.
3
and Sched.
A,
made under the Nationnl Insurance Act,
1946,
8.
28
(1).
The
equivalent provision in force in Northern Ireland
ia
S.R.
&
0.
(N.I.),
‘1948,
No.
196,
reg.
11
and 2nd Sched.,
as
enncted
by
S.R.
&
0.
(N.I.),
1968,
No.
46,
reg.
2
and Sched.
A,
made under the National
Insurance
Act
(N.I.),
1946,
a.
27
(2).
84J
VOL.
19
28
842
THE
MODERN
LAW
REVIEW
VOL.
19
“Provided that
if
in any case the claimant proves that there
was reasonable cause for the failure to make the claim before
the date
on
which
it
was made, the prescribed time for making
that claim shall be extended to the date
on
which the claim is
made.”3
The administrative tribunals under the schemes-ultimately the
commissioner
in
Great Britain and the umpire in Northern
Ireland-are left to determine what amounts to good cause
or
reasonable cause for the failure to claim in time.
It
is proposed
first to examine what they have decided, and then to consider
whether any criticisms of the decisions ought to be made.
GENERAL
FORMULA
Commissioners have evolved
a
general formula as to the meaning
of
good cause
for delay. In C.S.
871/49,
the commissioner
said
:
It
wilI
be observed that the expression used
is
good cause,’
not
a good excuse.’
Good cause
means,
in
my opinion, some
fact which, having regard to all the circumstances (including the
claimant’s state of health and the information which he had
received and that which he might have obtained) would probably
have caused a reasonable person
of
his age and experience
to
act
(or
fail to act) as the claimant did.” This observation, made
on
a
claim for sickness benefit, has been adopted as to unemployment
benefit‘ and death grant.6
It
is doubtless an approach which is
common to all benefits. Moreover, in
R(U)
6/52,
the commissioner
thought there was
no
distinction between good cause (national
insurance) and reasonable cause (industrial injuries).
In Texas, where the expression
in
the Workmen’s Compensation
Act
is
‘‘
good cause,”
‘‘
.
.
.
all that
is
required of an injured
employee is that he prosecute his claim for compensation with that
degree of diligence which an ordinary man, situated as he is, would
exercise under the same
or
similar circumstances.”
The Northern Ireland attitude seems to be similar to that in
Great Britain,
if
not expressed in identical language.
On
a claim
for sickness benefit-5/53 (S.B.)-the umpire said
:
When
considering whether there is good cause for failure to make the
claim, it is necessary to find something in the circumstances which
prevents
or
precludes the claimant from making the claim in
time
or
which involves a difficulty in
so
claiming which would
reasonably be regarded as insurmountable by the claimant.”
J
S.1.
1948,
No.
1362.
reg.
12
and 2nd Sched., as enocted
by
9.1.
1952,
No.
1208,
reg.
3
and Sched.
A,
made under the National Insurance (Industrial Injuries)
Act,
1946,
B.
32 (2):
The
equivalent provision in force in Northern Ireland
is
S.R.
&
0.
(N.I.),
1948,
No.
204,
reg.
12
and
2nd
Sched., as enacted
by
S.R.
&
0.
(N.I.),
1952,
No.
118,
reg.
3
and Sched.
A,
made under the National
Insurance (Industrial Injuries) Act
(N.I.),
1946,
8.
32 (2).
4
R(U)
6/52.
6
R(G)
9/52.
a decision
of
a
full
trihiinal
of
commisaioners.
6
78
A.L.R.
1252.
And seo Kermickel,
‘‘
Workmen’s Compensation-Court’s
Construction
of
Good
(’niise
(1953)
6
Hsylor
L.R.
396.
JIILY
1956
INSURANCE CLAIMS: CAUSE FOR DELAY
84a
In
an earlier unemployment benefit case-49 /48 (U.B.)-the
Northern Ireland umpire had cxpressed the opinion that
"
good
cause" under the 1946 Act meant the same as
it
had been inter-
preted to mean under the old Unemployment Insurance Acts.
He
then gave a summary based
on
a 1981 Great Britain unemploy-
ment insurance case:
788/81
(U). Something in the nature of a
praetorian edict fell from the Northern Ireland umpire at about
the same time in a sickness benefit case488/48 (S.B.), where he
made a general survey
of
good cause.
The commissioner in Great Britain has never gone as far as the
Northern Ireland umpire
'
in holding that the rules hammered out
under the old legislation apply under the 1946 Acts.
He
has
applied the old insurance principles in unemployment benefit and
maternity allowance cases, and has applied workmen's eompensa-
tion principles in industrial injury cases,'O but has never said that
all the old principles survived. Moreover,
in
R(U)
6/52,
the com-
missioner said that while good cause and reasonable cause were
identical to each other, they were not identical to reasonable cause
under the Workmen's compensation Acts.
TEE
DECISIONS
The actual dccisions on what amounts to good cause
or
reasonable
cause for delay can be arranged under certain convenient
headings.
Deliberate election not
to
claim
On principle, when a person knows he could claim and decides
not to, there is not good cause for delay in claiming if he changes
his mind. This has been laid down in cases
on
sickness benefit,']
and was the doctrine with regard to reasonable cause of the work-
men's compensation cases.I2 Similar principles have been applied
Ireland).
I*
Webster
v.
Colren
nros.
(1913) 6
B.
02;
Abel
V.
Estlcr
Bros.
(1919) 12
R.
184:
Lingley
v.
Thomas
Firth
d
Sons,
Lfd.
[1921]
1
K.B.
655;
Gibbard
V.
Thomaa
Tyrcr
d
Co.,
Lfd.
(1022) 15
B.
236;
Lioingstone
v.
Svmmcrlee
Iron
Co.,
Lfd.
(1022) 15
U.
296
(Court
of
Session);
Jolt'nson
v.
Harland
&
Wol
,
Ltd.
(1923)
Co.,
Lld.
(1926)
19
B.
314;
Drewett
V.
Britannia
Assurance
Co.,
Ltd.
(1927)
20
R.
431;
Soycr
v.
Johnson,
Matthey
d
Co.
(1927) 20
B.
604;
Brown
v.
Aaeling
d
Porter,
Ltd.
(1029)
22
B.
165;
Sharrod
V.
Warwickshire
Coal
Co.,
Ltd.
(1929) 22
B.
599;
Halsey
v.
Erith
Oil
Works
(1930) 23
B.
1;
White
v.
1,eicestershire Collicry
d
Pipe
Co.,
Ltd.
(1032) 25
B.
189
(H.L.);
Omen
v.
John
Baker
d
Bcssemer,
Ltd.
(1932) 25
B.
339;
Elliott
V.
Great
Northern
Ry.
(Ireland)
(1934) 69
I.L.T.R.
3
(C.A.,
Northern Ireland);
Taylor
v.
Wood
(1935)
28
B.
2387;
Holborough
v.
United
Dairies
(London), Ltd.
(1937)
30
B.
272;
IIodge
v.
Wakefield
Trinity
Football Club
(1937)
30
B.
359;
Aahton
v.
L.N.E.
Ry.
(1941) 34
B.
202;
Macdonald
V.
Flynn
(1944) 37
B.
12;
Steoenc
v.
London
Elcctricify
Board
(1949)
41
B.
294.
And
Bee
Rankine
v.
Alloa
16
B.
164;
Aitkcn
v.
Hemslcy
(1926) 19
B.
88;
Atherton
V.
C
il
orley
Colliery
a44
TEE
MODERN
LAW
REVIEW
VOL.
I9
in such cases in other countries.l3
It
does not matter why the
insured person made the decision, whether through thoughtlessness,
hope that the sickness would be over too quickly to make it worth
while bothering ministry officials-though a slightly more lenient
attitude
on
this point seems to be taken
in
New South Wales
l4
and
possibly also
in
Victoria lS-a desire to save the insurance fund,
a
wish not to antagonise his employer (under workmen's compensa-
tion),
or
for any other reason.
In
C.S.
871/49,
the claimant, who was employed by British
Railways, thought she would receive full wages during sickness,
as had happened before.
When
she discovered her mistake, she
made a late claim for sickness benefit. This was disallowed
on
the
ground that she had
no
good cause
for
her delay.16
In
1/52
(S.B.)
the employer was in the habit of paying full wages for periods
of
sickness, and the claimant employee had to sign an undertaking not
to claim sickness benefit. Later, the claimant received a letter
saying that as from a year previously she was not entitled to sick
leave
on
full pay. The Northern Ireland umpire held there was
good cause for delay in respect of sickness during that time.
There appears to be
no
decision
on
the situation where an
employer does pay full wages for a period during sickness, and then
stops while the employee is still ill, thus causing him
to
make
a
late claim.
In
workmen's compensation cases, however, there was
held in those circumstances to
be
reasonable cause for the delay
in
claiming.
In
Luckie
v.
Merry,"
a workman who was injured
Coal
Co.,
Ltd.
(1904)
6
F.
375
(Court
of
Session);
Bedford
v.
Bell
d
Whinne
Ltd.
(1933) 26
B.
161;
Phillips
v.
G.
I.
Sideboltom
d
Co.,
Ltd.
(1934) 27
8:
382.
Cf.
Harris
v.
James Howden
d
Co.
(Land), Ltd.
[1939] 3
All E.R.
34.
In this nrticle
the
nbbrevintion
"
B." stands
for
Butterworth's
Workmen'e
Compensation Cases.
All workmen's cornpenantion
enses
cited nre decisions
of
the English Court
of
Appenl
unless the contrary
is
indicnted.
1s
New South Wales:
Vardy
v.
South Clifton
Coal
Mining
Co.,
Ltd.
(1932) 22
Arret.Dig.
1271;
McNcllee
v.
Daoison
(1934) 29
Aust.Dig.
469;
Day
v.
Gooernmcnt Printer
(1935) 29
Auet.Dig.
460;
Carratt
V.
Tooheys,
Ltd.
[1950]
Aust.Dig.
562.
Weatern Australin:
Benison
v.
Booty
(1924) 27
W.A.L.R.
3.
New Zealand:
McCarthy
v.
Union
Steamship
Co.
of
New Zealand, Ltd.
[191G]
N.Z.L.R.
1154.
Mnine
("
unforeseen
cause
"):
78
A.L.R.
1254.
Oklahoma ("sufficient
renson"):
92
A.L.R.
510;
Ford Motor
Co.
V.
Hunt
(1930) 78
A.L.R.
1227.
Texas
("
good cnuse
")
:
145
A.L.R.
1288;
Kcrmickel,
op. cit.,
note 6,
ante.
14
Butt
v.
John
W.
Eaton, Ltd.
(1920)
29
C.L.R.
126
(High Court).
16
Wilziams
v.
Victorian Railway Commissioners
(1939)
29
Aust.Dig.
463.
16
See also C.S.
637/50; 488/48
(S.B.) (Northern Irelnnd);
483/48
(S.B.)
(Northern Ireland).
17
119161 3
K.B.
83.
And
see
King
v.
Port
of
London Authority
[1920]
A.C.
1
(H.L.);
Hillman
v.
'L.B.
d
S.C.
Ry.
[1920] 1
K.B.
284;
Shotts
Iron
Co.,
Ltd.
v.
Pordyce
[l9!30]
A.C.
603
(H.L.);
Maynard
v.
Bercooitch
(1932) 25
B.
71;
Cortlidge
v.
Shcllon
Iron,
Steel
d
Coal
Co.,
Ltd.
(1934) 27
B.
136; 92
A.L.R.
609
(Texns).
Cf.
Healy
v.
Galloway
(1906) 41
I.L.T.R.
6
(C.A.,
Irelnnd);
Lynch
v.
Marquis
of
Lansdowne
(1913) 48
I.L.T.R. 89
(ibid.);
Allen
v.
Hoey
(1914) 49
I.L.T.R.
39
(ibid.); Kcnny
V.
Alliance
and
Dublin
Comumere' Gas
Co.,
Ltd.
(1923) 67
I.L.T.R.
167
(C.A., Irish Free State);
Dretoett
v.
Britannia Assurance
Co.,
Ltd.
(1927)
20
B.
434;
Soyes
v.
John-
#on,
Matthey
d
Co.
(1927) 20
B.
504.
Jay
1966
INSURANCE CLAIMS: CAUSE
FOR
DELAY
845
reported the accident to his employer, who told
him
to potter
around
on
full pay till he was better. The workman did
so,
and
gradually got back to almost
his
old work, when he was dismissed
for misconduct unconnected with the accident.
It
was held that
there was reasonable cause for a late claim.
In
Harper
V.
Harper,"
it
was held that receipt of an
em gratia
payment for a time
constituted reasonable cause for delay in claiming workmen's
compensation. The Supreme Court of the Irish Free State,
in
Marron
v.
Louth
C.
C.,l9
held that being engaged in (unsuccessful)
negotiations for a settlement was reasonable cause for making a
claim out of time.
Another class of case is that where the insured person thinks
the misfortune giving rise to the right to benefit will be
so
short-
lived that claiming is not worth while.
In
C.S.
596/49,
$he
claimant had originally decided not to claim sickness benefit because
he thought he would get better quickly. When he turned out to be
wrong and claimed, he was held not to have had good cause for his
delay.
A
similar decision was given4/52
(S.B.)-in
Northern
Ireland against a man who delayed claiming because he kept hoping
to be cured. But
a
more lenient view seems sometimes to have
been taken of workmen's compensation.
In
Moore
v.
Naval Colliery
Co.,
Ltd.,20
it
was held that hope of a cure was reasonable cause
for delay where the workman did not intend to claim
if
his hope
materialised. In
R(U)
84/51,
a
man was held not to have good
cause for delay in claiming unemployment benefit by virtue
of
mistakenly expecting to be out of work for
only
one day.
Finally, there
is
the case where a person intends to claim but
waits until he has cleared up some preliminary issue.
In
5/58
(S.B.),l
a claim for sickness benefit
in
Northern Ireland failed
for
tardiness where the claimant complied with requirements by his
employer and friendly society that they see the medical certificate
before
it
was sent to the ministry. Neither this
nor
the expense
of
obtaining a second certificate was held to amount to good cause
for
the delaysa
Physical incapacity to claim
delay.
If
a
person
is
too ill to attend to claiming he has good cause for
This is agreed by all the authorities, whether under the
18
[1916] 2
E.B.
811.
19
(1938) 72
I.L.T.R.
101.
10
(1916)
6
B.
87.
cf.
McNulty
v.
County
Donegal Joint
Railways
Committee
[1948]
1r.R.
649
(Supreme Court, Irish Free State). See
aleo
notee
14
and
15,
ante.
1
And nee
899/49
(S.B.)
(Northern Ireland).
3
Cssee falling under this heading were dealt
with
in the
same
way under the
old unemployment insurance legislation
:
see
262/30; 1822/30;
7693/80;
10427/30; 11618/30; 788/81; 16463/81; 19970/89; 1904/36; 2942/36; 3104/98;
118/42
and
396/18
(Northern Ireland).
Cf.
H/34
(Northern Ireland).
846
THE MODERN LAW REVIEW
VOL.
19
national insurance scheme in Great Britain
'
or
Northern IrelandY4
under our old Workmen's Compensation Acts,S
or
under existing
workmen's compensation legislation abroad.G
In C.S.
51 /49,
a claimant
in
hospital for a very serious operation
was held to have good cause for delay in claiming sickness benefit.
In
R(S)
21/54,
the claimant
for
sickness benefit lived alone; she
was new to the district and did not know where
$0
send her medical
certificate; she was being helped out only by
R
neighbour of slight
acquaintance; she had lost her voice; messages she sent were not
delivered; all these circumstances
of
worry added
to
her illness.
Good cause was found.
The Court of Session,
on
the other hand, in a case
'
under the
Employers' Liability Act,
1880,
had held there was
no
reasonable
excuse for delay where a widow claiming in respect of the death
of
her husband was in a disturbed state
of
mind on account
of
the accident. In another such case8 the same court held there
was
no
reasonable excuse where the claimant, seeking compen-
sation for the death of his son, was ignorant, old and illiterate.
Defective mode of
claiming
Ignorance as reasonable
or
good cause must be considered
in
detail separately, as must the allied subject of acting
on
misguided
advice.
A
defective claim may not be wholly ineffectual. In
C.S.
38/49,
it
was held that
if
a person notified the ministry
of
his claim, and the ministry treated him as
a
claim-ant, that
WRS
good cause for delay
in
making a formal claim.B
In
C.S.
618/49
the delay
of
medical certificates in the post !.as held good cause
3
Sicknesa benefit: C.S.
51/49;
C.S.
537/49;
C.S.
42/50;
R(S)
3/53;
R(S)
9/54;
R(S)
12/54;
R(S)
21/54;
widow's pension:
C.G.
153/49;
industrial injury
benefit: R(I)
43/55.
4
Sickness benefit:
488/48
(S.B.);
287/49
(S.B.).;
%/ti1
(S.B.);
death grant:
2/49
(D.G.).
S
Sanderson
v.
Parkinson
d
Sons,
Ltd.
(1913).
6
B.
6";
Maund
V.
Barton
(1924) 17
B.
131;
Gill
v.
Owners
of
Ship Boltiface
(1932) 25
B.
346;
Lomas
v.
Park Hall Colliery
Co.,
Ltd.
(1935) 28
B.
313;
Ellison
V.
Caloert
d?
IZeald
[1936]
3
All
E.R.
467
(H.L.).
Cf.
Whitc
v.
Leicestershire Colliery
d
Pipe
Co.,
Ltd.
(1932) 25
B.
189.
6
New
South
Wales:
Jordan
v.
Metropolitan Water, Sewerage and Drainage
Board
(1943) 29
Aust.Dig.
451.
New
Zcslond:
Sillick
v.
Taupiri Coalmines,
Ltd.
[1922]
N.Z.L.R.
513.
Maine:
78
A.L.R.
1250.
Mosaachusetts:
107
A.L.R.
821.
Michigan:
Gage
v.
Board
of
Control
of
Pontiao
State Hospital
(1919) 7
A.L.R.
533.
Nebraako:
145
A.L.R.
1284.
Oklahoma:
145
A.L.R.
1285.
Rhode Island:
78
A.L.R.
1250.
Texas:
78
A.L.R.
1252;
Kermickel,
op.
cit.,
first
note
6,
ante.
Republic
of
Ireland:
Dennehy
V.
O'Shea's,
Ltd.
(1954)
90
I.L.T.R.
1
(Su
reme Court).
Connolly
V.
Young's
Para&
Light
and
Mineral
Oil
Co.,
Ltd.
(1894) 22
R. 80.
8
M'Fadyen
V.
Dalmellington Iron
Co.
(1897) 34
S.L.R.
266.
*
And
800
38/50 (S.B.)
(Northern Ireland). Sea
also,
for
similar views
on
workmen's compensation: New South Walea:
Hall
v.
Skuthorpe
(1026) 22
Aust.Dig.
1267;
Burns
v.
Commissioner
for
Railways
(1939 29
Auat.Di
.
457.
Ontario:
Armstrong
v.
Canada Atlantic Ry.
(1802) 4
0.L.R.
!SO.
fl.9.A.
generally
:
Appel,
"
Const,,uction
of
Statutory Excuse
for
Failure to give
Written Notice
of
Injury
South
Dakoto:
92
A.L.R.
511.
Tennessee:
78
A.L.R.
1250.
Virgmia:
78
A.L.R.
1252
(all
'I
reasonable excuse
'I).
(1927) 12
Cornell L.Q.
230.
JULY
1966
INSURANCE CLAIMS: CAUSE
FOR
DELAY
847
in
10
11
12
IS
14
for not delivering them in time.I0 In
R(S)
25/52,
the claimant
addressed his certificate to the local national insurance office and
put
it
in the out-tray at his office. The clerk responsible for
posting
it
failed to do
so.
The claimant made
no
inquiries for
ten days.
It
was held that he had good cause for delay: he
had acted as
a
reasonable man would have done.”
Allied to these cases are those where the insured person delegates
the job of making the claim and the agent makes
a
mess of
it.
In
R(S)
4/52,
a
girl aged fifteen who had never had to claim
before and who was in hospital for a serious illness left the sickness
benefit question to the judgment of her parents. They relied
on
the opinion
of
a
(‘
Society Collector
that the girl was too young
for benefit. When the mistake was discovered,
it
was held that
she had good cause for the delay (though
on
the authorities the
parents
did not have good cause). The New Zealand Compensation
Court has held1.’ that
a
minor had reasonable cause for delay
where his guardian
ad
litem
bungled the claim.
In C.G.
207/49,
a
claim for maternity grant and attendance
allowance, the claimant was ill after confinement. She left the
business of claiming to her husband, the husband thought the
hospital was attending to
it,
and in fact
no
claim was made at
all. The claimant was held to have good cause for part but not
all of the period of over two months delay after she left hospital.
The commissioner said:
‘(
When
rr
claimant was seriously ill, and
unable to attend to a claim at the time when she should have
attended to
it
in order to comply with the relevant regulations,
the question to be considered in determining whether
or
not she
had good cause for her failure to make
a
claim before the date
on
which
it
was made depends upon the answer to the question
‘Has she done all that she could reasonably be expected to do
in the interval?’ She
is
not entitled to leave to others the making
of her claim, and take
no
further interest
in
the matter.
It
is her duty to follow up the matter for hehelf,
so
far as she can
reasonably be expected to do
so,
having- regard to her condition
and circumstances.’’
It
was stated for unemployment benefit, in C.U.
78/49,
that
where a claimant’s association has an arrangement with the ministry
for collective claims by an association official
on
behalf of all the
entitled members of the association, and the arrangement is not
complied with during the prescribed time, all the individual bene-
ficiaries (except the defaulting official) have good cause for delay
.
putting forward their individual claims.“
And
see
C.G.
153/49: 2/52
(S.B.)
(Northern
Irelond);
Kitchen
V.
C.
Koch
d
Co.
(1931) 24
B.
294
(H.L.).
A
aimilar case
is
C.S.
506/49.
Sutton
v.
Esioe Singh
[1940]
N.Z.L.R.
605.
And
nee
18031/30
(unemployment insurance);
78
A.L.R.
1258
(Kentucky);
92
A.L.R.
511
(Texas).
And
see,
as
to New South Wales:
Small
v.
Mettera,
Lld.
(1941) 41
N.S.W.
S.R.
97;
as
to New Zealand:
Mahoney
v.
Thomas
Borthroick
d
Son8
848
THE
MODERN
LAW
REVIEW
VOL.
19
Several cases have arisen of solicitors bungling claims for death
grant.
In
C.G.
1/50,
clerks at the registry of deaths expressed
conflicting opinions as to the claimants’ right to this benefit,
SO
she put the matter in the hands of the solicitor who was already
dealing with probate for her. He made a late claim, not having
good cause himself for the delay. The claimant s~cceeded,~~ and
the commissioner said:
‘‘
In a case in which
it
was practicable
for thc beneficiary to make his claim for benefit himself but he
has delegated the task of making
it
to another person who fails
to make the claim in time, good cause for the failure can be
shown by proving that having regard to all the circumstances,
including the beneficiary’s education and experience
of
affairs,
a
reasonable person in the same position would not have thought
it
necessary to send the claim to the local insurance ofice himself
but would have relied
on
the other person to send
it
in
time
and would have taken
no
steps beyond those
(if
any) which the
beneficiary took to ensure that the other person had sent the
claim in time.” Then he added a cautionary note:
I
desire
to emphasise that a claimant can only prove good cause
if
he
shows that he did all that he reasonably could to ensure that
the claim was made in time. Every case of this kind must be
judged in the light of the particular circumstances:
it
does not
follow
from this decision that in a case
in
which the claimant is
in
no
doubt about his legal right to the benefit and is not already
consulting a solicitor about a matter closely conn’ected with the
claim but merely asks the solicitor (as he might ask a lay friend
or
employee) to make the claim for him in order to save himself
time and trouble, the clnimant will be held to have proved good
cause for delay
if
the solicitor fails to make the claim
in
time.”
The full tribunal of commissioners, in
R(G)
9/52,
adopted the
principle as to delegation stated in
C.G.
207/49.16
On
an executor’s
late claim for death grant, the majority held that the claimant
had not got
good
cause for delay
in
being under the impression
that the deceased’s
son
was claiming
or
in
thinking that the
solicitor who was acting as law agent in the executry would attend
to the matter. The solicitor had
not
beer1 specifically instructed to
claim death grant.” The dissentient made four points:
(1)
It
was not established as
a
fact that
no
specific instructions were
given to the solicitor.
(2)
An
executor cannot be expected
to
know about death grant in the same way as an insured person
is expected to know about his
own
benefits.
(8)
Generally
a
person cannot shelter behind his own ignorance.
In
other words
a claimant should seek advice at an office of the Ministry. But
(~ustralaaia),
Ltd.
[1944] N.Z.L.R.
80;
cf.
Welah
v.
Ocean Beach
Freezing
Co.,
Ltd.
[l944] N.Z.L.R.
92.
15
Cf.
C.Q.
76/60.
1e
Bee
laeU
note
18,
ante.
8ee
alm,
as
to
delegation
of
claiming
to
n
law
firm
in
Texas,
Eermickel,
.
M’t.,
first
note
6,
ante.
17
And
see
871/49
(S.B.)
(Torthem
Ireland).
JULY
1966
INSURANCE CLAIMS: CAUSE
FOR
DELAY
849
surely
only
if
he was not in touch with a person who was,
or
should have been, even better qualified to give the necessary
guidance than
a
clerk-possibly a not very experienced clerk-
consulted at an office of the Ministry?
(4)
Referring
$0
caution
about employing solicitors expressed in
C.G.
1
/50,18
while that
might apply to other benefits it ought to be part of every probating
solicitor’s duty, without any specific instructions, to apply for
death grant.
In R(G) 17/52, an executor gave a general instruction to a
solicitor to get in the deceased’s estate, but did not specifically
mention death grant. He did, however, send, among other papers,
the deceased’s national insurance card and death certificate and
leaflet N.I.
89
(which explains about death grant). The solicitor
did not claim in time, but it was held that the executor had
good cause for delay.
C.G.
1/50
Is
was followed and R(G)
9/52
l9
distinguished.
Oflending
the
doctor
On
a
late claim for disablement benefit-R(1) 16/58-the
claimant said the delay was due to the time it took to convince
his doctor that. he was disabled. He thought that
if
he claimed
before that he would be prejudicing future relations with the
family doctor. This made him two and a quarter years late.
The commissioner said:
“I
think a man may reasonably be
deterred from making
D
claim for disablement benefit by the feeling
that
if
he does
so
he will give offence to his own doctor. But
there is
a
limit to this.
It
might be reasonable to abstain from
mnking
n
claim for a short time
if
he felt that his doctor was
probably riglit
in
treating the disability as temporary and trivial,
yet
it
would not be reasonable to abstain from claiming for a
long time,
or
if
he felt all along that the doctor was probably
wrong.” Both these features were against the claimant, and
accordingly the cause for delay was held not reasonable.
Zgnorance
of
the
law
Ignorance of the statutory provisions, of the regulations,
or
of decisions under them,
so
that one does not know a claim could
be made,
or
so
that one does not know the correct ,procedure
for claiming, does not constitute relieving cause for delay.
It
has
been held not reasonable cause for delay
in
claiming under the
industrial injuries scheme in Great Britainz0 and in Northern
Ireland,’ and that was also the position under our Workmen’s
Compensation Acts.2
It
has been held not good cause for delay
16
See
lost
note
16.
ante.
19
See
last
note
16,
ante.
20
C.I. 14/49;
R(I)
16/63;
R(I)
81/63:
RG)
28/64:
RCI)
79/84.
Cf.
RQ)
61/64.
2
Roles
v.
Pascall
ct
Sons
[1911] 1
K.B.
98%:
Judd
V.
Metropolitan
Asylum
Board
(191%)
6
B.
420;
Mcloille
V.
M’Carthy
(19U) 47
I.L.T.R.
67
1
1/60
(1.1.);
i/sa
Q.I.).
350
THE
MODERN
LAW
REVIEW
VOL.
19
in claiming sickness benefit in Great Britain
and Northern
Ireland,” unemployment benefit in Great Britain and Northern
Ireland,O and maternity benefit,‘ widow’s benefit,’ and death
grant
It
was the rule,
too,
of
the old
unemployment insurance scheme.”
In R(1)
16/58,
the claimant strained his wrist on January
24,
1050,
whilc lifting timber. He received benefit until February
4,
1050,
and thereafter was back at work more
or
less continuously
until May,
1052,
when he. entered hospital
for
an operation on
his wrist. He left hospital on June
2,
1052,
and claimed disable-
mcnt benefit on .June
18
of that year (two and a quarter years
late). When first asked to explain the delay, the claimant said
he was unaware of the time limit. The commissioner commented:
“It
is well established that ignorance of one’s right to benefit
or
of the procedure for obtaining benefit cannot by itself amount
to reasonable cause
for
delay in claiming it.” The claimant also
said (a) that as he had notified the injury he thought no further
notification was necessary until he was able to substantiate the
claim
for
disablement benefit, and (b) he thought he had first
to establish
his
claim
011
medical grounds with his
own
doctor,
who
for
a
long time thought the injury slight and temporary.
Neither of these erroneous beliefs was held
to
amount to reasonable
cause
for
delay.
The claimant in
C.S.
871/40,”
was held not to have good
cause for delay in claiming in that she did not know sickness
benefit was payable
to
n
person
in
receipt of full wages.
A
delayed
injury benefit claim was made i’n
C.I.
1.%/40,11
where the claimant’s
in
Great Britain cases.
(C.A., Ireland);
Leslie
v.
Robson
(1920) 13
B.
150.
And see
Bramley
v.
Evans
1
Sons
(1909) 3
B.
39;
Clay
v.
Sherloood Colliery
Co.,
Ltd.
(1922)
15
B.
203;
Aldridgn
V.
Warwickshire Coal
Co.,
Ltd.
(1925) 18
B.
131.
Cf.
Rankine
v.
Alloa
Coal
Co.,
Ltd.
(190.1)
6 F.
375
(Court
of
Session).
J
C.W.S.
3/48;
C.S.
35/48;
C.S.
34/49;
C.S.
99/49;
C.S.
156/49;
C.S.
371/49;
C.S.
554/49;
C.S.
42/50;
C.W.S.
14/50;
C.S.
270/50;
C.S.
414/50;
C.S.
453/50;
C.S.
537/50.
Cf.
C.S.
G13/49.
4
488/48
(S.B.);
951/48
(S.B.);
483/48
(S.B.);
287/49
(S.B.);
636/49
(S.B.);
407/49
(S.B.);
1119/49
(S.B.);
38/50
(S.B.);
83/50
(S.B.);
9/83
(S.B.).
5
R(U)
5/52.
6
See
84/50
(U.B.).
7
Attendance allowance: C.G.
16/48;
C.S.G.
6/48;
C.S.G.
9/49;
R(G)
3/53;
C.G.
47/49;
maternity allowance:
C.W.G.
2/49;
maternity grant:
R(G)
3/53.
8
C.G.
153/49
(widow’s pension).
9
C.G.
125/50,
where it was held that neither ignorance
of
the law nor having
a
great deal
of
harassing business
to
transact in connection with the death,
nor
both together, constituted a good cause
for
delay;
C.G.
184/50,
where
it
was ale0
held that leaving claiming
to
a
person resident in the deceased’s area, when
the claim could be made by pat, did not make the agent’s ignorance good
cause
;
R(G) 9/52
ftribunal
of
commissioners).
10
1213/1929
;
1999/39; 354/37
(Norrhern Ireland), and many subsequent Northern
Ireland decisions. And see
3104/38.
See also, regarding the old sickness
benefit system,
National Health Insurance Approved
Societies
Handbook
(1933),
p.
101,
para.
333.
11
And see C.S.
554/49;
C.S.
537/49.
12
And see C.S.
09/49.
JULY
1956
INSURANCE CLAIMS: CAUSE FOR
DELAY
851
reason for the delay was that she did not know where to send
the medical certificates and that she was not fully aware of the
changes that had been made with rcgard to the method of claiming
for
industrial injury. The claim failed, and the commissioner
said:
Mere ignorance of the Regulations
. .
.
is not reasonable
cause for failure to make a claim within the prescribed time.
A
person who does not know can normally inquire at a local insurance
ofice.” This need to inquire of a competent person is stressed
in many cases. In
C.S.
42/50,
it
was pointed out that there is
no
need to make inquiries until the occasion of a claim arises.
In
C.S.G.
6/48,
the commissioner suggested that if the explana-
tion
of
the ignorance were the condition of health of a particular
claimant
or
a want of intelligence good cause for delay might be
proved. In
1/52
(I.I.), the grounds put forward for the delay
were the claimant’s ignorance and tender age of fifteen, and the
absence
of
her mother from home due to the mother’s father’s
death (but the claimant’s father was at home). These were held
not to be reasonable cause. The claimant’s minority was not
a
reasonable cause in itself. (In Texas, minority is a factor to be
taken into account in determining whether there is good cause
for delay, but whether it can ever amount
to
good cause on its
own
is doubtful.13 The Supreme Court of Victoria has held“
that being six years old is reasonable cause for delay.) As to
the rest, the Northern Ireland umpire said:
Neither
do
I
think
that claimant’s age raises
a
presumption in her favour that reason-
able cause for delay in claiming can be said
to
exist. Each case
must
be
examined on its merits, and the mental capabilities of
the individual claimant assessed.” Here there was
no
evidence
of lack
of
mental capacity, only ignorance. A contrast is
R(1)
51/64.
The claimant injured his knee in February,
1951.
He
was
found
in November of that year
to
be suffering from a tuber-
cular hip joint.
He
claimed disablement benefit in April,
1953.
Subsequently a medical board found that the disease was due
to
the accident. Before claiming, the applicant knew nothing about
the industrial injuries scheme; he did not realise the connection
between the accident and the disease; his brain only began to
function normally when he could first get about on crutches in
January,
1953:
he then realised there might be a connection.
This claimant succeeded despite the delay.14a
Opinions as to ignorance of the law are divided in the United
States of America.
It
has been held in certain states not to
excuse delay.15 In Texas, it is not clear whether ignorance
is
good
cause
or
not.16 In Minnesota, ignorance of the law takes
13
See
142 A.L.R. 1042.
14
Green
v.
Hansen
(10.23)
29
Argus L.R. 452.
14a
And
Bee
R(I) 43/55.
15
Idaho:
92
A.L.R.
510;
Tenneesee:
78
A.L.R. 1252.
16
See
78
A.L.R. 1253;
Ecrmickel,
op.
n’t.,
first
note
6,
ante.
852
THE
MODERN
LAW
REVIEW
VOL.
19
a claimant out of the time limit by express statutory provision."
In
Canada the English view is followed, but in Australia there
has been a departure from that approach.
In
New Zealand, after
considering the Australian doctrine, the Court of Appeal
l9
followed
the English authorities.
The development of the Australian case law has been pendulous.
In
Murray
v.
BaxterYao
a New South Wales case, the High Court
held that the ignorance there proved amounted to reasonable cause
for the delay. Eight years later, the Supreme Court of New South
Wales' seemed to take the opposite view. Then after another
fifteen years, in
Stevenson
v.
Metropolitan Meat Industry Com-
missionY2
the same court followed
Murray
v.
Baxter.
Davidson
J.
grappled with the distinctions between the cases. He aaid3:
".
. .
it
is
not an excuse to rely upon absolute ignorance
of
the
law, but this cannot mean that an applicant is bound to know
the law in its correct application
to
every set of facts
.
.
.
"
And
later4:
"
.
. .
when an applicant knows the law to the degree
that
it
provides that, in the case of injury in his employment,
he is entitled in some circumstances to compensation, and bone
fide applies his mind with the information
in
his possession and
knowledge to the question of the application of the law as he
knows
it
to the facts of his own particular case, and misconceives
his true position in law
or
fact
or
in both combined, he
is
not
ignorant, but mistaken, although his mental process may not
reach the standard which would be ascribed to a reasonable man."
This fine treading between the lines of complete ignorance and
merely extensive ignorance
is
continued by the later New South
Wales cases.6
A person who is ignorant
or
in
doubt is supposed to inquire of
the ministry,
or,
in certain circumstances, of a solicitor.
If
he
does
so,
he has good cause for delay where completing the inquiries
runs him over the prescribed time.b
An
extended application of
this principle is C.U.
78/49,
where there was
a
late claim
for
17
See
78 A.L.R. 1254.
I*
See 78 A.L.R. 1254 (Alberta and Manitoba).
19
Wilson
v.
Cannaway
d
Co.,
Ltd.
119321 N.Z.L.R. 843.
Cf.
William8
V.
Henderson
d
Pollard, Ltd.
[lo461 N.Z.L.R. 238 (Com nsatron Court).
20
(1914)
18
C.L.R. 622.
Cf.
Nelaon
v.
Bankie
(1924) 22 Ket.Dig. 1264 (8011th
Auetralia).
or
N.S.W.
(1922)
22
Aust.Di
.
1273.
Cf.
Benison
v.
Booty
(1924) 27
Ff.A.L.R.
3
(Western Australiaf
3
37 N.S.W.S.R. 117.
4
37 N.S.W.S.R.
118.
6
Flint
v.
Lithgou, Valley Colliery
Co.,
Ltd.
(1937)
29
Auat.Dig. 452;
McLeiah
v.
Public Works Department
(1937)
29
Aust.Dig. 457;
Jordan
V.
Metropolitan
Water, Sewerage and Drainage Board
(1943)
29
Aust.Dig. 451;
Garratt
v.
Tooheys,
Ltd.
[1950] Aust.Dig.
661;
Rutherford
V.
A.
C.
Saxton
d
Son8
Pt
,
Ltd.
[1950] Auat.Dig. 662.
C.!.
42/60 (aickness benefit);
R(G)
3/53 (maternity grant and attendance
allowance).
1
Re An Arbitration between Dyball and Railway Commiaaionera
a
(1937) a7 N.s.w.s.R. 109.
JULY
1956
INSURANCE CLAIMS: CAUSE
FOR
DELAY
358
unemployment benefit. The unemployment was caused by a lock-
out, and the claimant’s delay was due to awaiting
a
reply from his
union as to whether they were going to pay lockout pay. (It is
probable that had they done
so
unemployment benefit would not
have been payable.) As
soon
as the claimant heard
no
lockout
pay was forthcoming he made
a
claim, which was successful.’
There comes a stage, apparently, at which even
a
normal person
may be ignorant of the law affecting his own right to benefit.
R(S)
18/52
was a late claim for sickness benefit.
A
schoolmaster
was
in
contact with scarlatina, and was consequently away
from
work for twelve days
on
full pay. He did not realise he could
claim until later told by his employers to do
so.
The commissioner
held there was good cause for the delay. A reasonable man might
well have failed to realise there was a regulation deeming him
incapable of work while quite healthy.
It
might be different if his
employers did not pay him, as he would then probably apply for
unemployment benefit and thus find out about sickness benefit.
Zgnorance regarding an injury
A
special class
of
ignorance often crops up in industrial injury
cases: that is where the claimant has been for a time unaware
that his injury is
so
serious that
it
is going to result in disablement.
Where
it
is reasonable to be unaware
of
this, there has been held
to be reasonable cause for delay in claiming. In
C.I.
278/50,
a
man had injured his thumb. When the bandage was removed, the
thumb was stiff. He thought the stiffness was due to the bandage,
and the doctor did not suggest anything serious was wrong. Later,
it was found that there was an injury
to
the joint, and a claim was
made for disablement benefit. The commissioner held there was
reasonable cause for delay down to the date of discovery of the
disability.
In
R(1)
16/51,
there was also a late claim for disable-
ment benefit. The claimant was not incapable of work at first
because his employer found him work suitable to his condition and
allowed him leave of absence for medical treatment. Months later
he was examined by a surgeon at a hospital, and
it
was found that
he had
a
serious disability. The commissioner held there was
reasonable cause for delay down to the day after the surgeon’s
examination but not thereafter. By virtue of his being able to
perform his allotted duties and the gradual improvement of his
injury under treatment, the claimant did not think his injury
sufficiently serious to cause him to make inquiry as to his rights
under the Act
:
that was reasonable.
Under the Workmen’s Compensation Acts, the principle wag
worked out that there was reasonable cause for delay during
a
period when the disability was latent
or
when
it
rcasonably appeared
See also 1774/35
(unemployment
insurance).
8
C.I.
273/50; R(1) 16/51.
And
see
1/52 (1.1.)
(Northern
Ireland).
854
THE
MODERN
LAW
REVIEW
VOL. 19
to be tri~ial.~
For
example, in
Brealcwell
v.
Clee
Hill
Granite Co.,
Ltd.,lo
when a cripple had an accident he gave no notice
of
it
to his
employers, thinking he would
soon
be well, in which case he had
no intention
of
claiming as he feared the insurance company might
stop him going back to work. He later discovered he was incapa-
citated from ever working again, whereupon he claimed. The Court
of
Appeal held he had reasonable cause for delay.
In
Runkine
v.
Alloa Coal Co.,
Ltd.,"
the claimant did not think
his injury was as serious as his doctor had told him, and did not
think the relevant occurrence was an accident within the meaning
of
the Workmen's Compensation Act,
1897.
Both these beliefs
were wrong. The workman did not intend to claim if he rccovered
as quickly as he expected. He did not recover, and he consulted
a
law agent, who advised him he had no claim. He thereupon
claimed and succeeded, the Court of Session holding there was
reasonable cause
for
the delay. According to Lord M'Laren
l2
the
doctor had been euphemistic. According to Lord Kinnear
l3
a
Home
V.
Arding
d
Hobbs
(1911)
5
B.
36;
Breakwcll
v.
Clee
Hill Granite
Co.,
Ltd.
(1911)
5
B.
133;
Fry
v.
Cheltenham Corp.
(1911) 5
B.
162;
Refuge
Assurance
Co.,
Ltd.
v.
Millar
(1911) 5
B.
622
(Court
of
Session);
Ellis
v.
Fairfield Shipbuilding
d
Engineering
Go.,
Ltd.,
1913
S.C.
217
(Court
of
Session);
Thompson
v.
North
Eastern
Marine Engineering
Co.,
Ltd.
(1914)
7
B.
49;
Zillwood
v.
Winch
(1914) 7
B.
60;
Haward
v.
Rowsell
d
Matthews
(1914) 7
B.
552;
Coulson
v.
South
Moor
Colliery
Co.
(1915)
8
B.
253;
Smith
d
Leishman
v.
Flood
(1915)
8
B. 613
(Court
of
Session);
White
V.
Ford
Motor
Co.,
Ltd.
(1917)
10
B.
334;
Walters
v.
Wall d
Sons,
Ltd.
(1917) 10
B.
667;
Dobson
v.
Anglo-Sazon Petroleum
Co.,
Ltd.
(1921) 14
B.
95;
Foley
v.
J. Hardie
d
Co.
[lo231 2
1r.R.
85
(C.A., Irish Free State);
Fcnlon
v.
Owners
of
Ship Keloin
[l925] 2
K.B.
473;
Albison
V.
Newroyd
Mill,
Ltd.
(1925)
18 B. 474;
Templeton
v.
E.
d
J. Coupe
d
Sons,
Ltd.
(1932) 25
B.
66;
Flindcrs
v.
A.
A.
Jones
16
Shipman. Ltd.
(1932) 25
R.
663;
Phillips
v.
C?.
I.
Sidebottom
d
Co.,
Ltd.
(1934) 27
B.
382;
Incc
v.
Pulling
d
Wolsey.
Ltd.
(1935)
28
B.
154;
Ellison
v.
Caloert
d
Heald
[I9361 3
All
E.R.
467
(H.L.);
Fitchctl
v.
C.
D.
Holmes
d
Co.,
Ltd.
(1937) 30
B.
289;
Stenning
v.
Southern
Ry.
Co.
(1937) 30
B.
430;
Sims
v.
Jas. Rowoe
16
Sons
(1938) 31
B.
184;
Burke
v.
McDonough's
Fertilizers,
Ltd.
(1839) 74
I.L.T.R.
93
(Supreme
Court,
Irish Free State);
Schofield
V.
Halstead, Lld.
(1941) 34
B.
99:
Mc1,oughlin
v.
Galway
C.C.
[1953]
1r.R.
143
(Supreme Coiirt.
Rcpublic
of
Ireland).
And
see
Stinton
V.
Brandon
Gas
Co.,
Ltd.
(1912)
6
B.
426:
Eydmann
V.
Premier Accumulator
Co.
(1916)
8
B. 121;
WasselI
V.
Russell
d
Sons
(1915)
8
B.
230;
Hocoarth
v.
Clifton and Kcrnley
Coal
Co.,
Ltd.
(1920)
13
B.
179;
Lingley
v.
Thomas Fwth
d
Sonn,
Ltd.
[l92l] 1 K.B.
665:
Redman
v.
Sunderland
Corp.
(1934) 27
B.
376;
Dunne
V.
OJdy
C.C.
[1939]
1r.R.
358
(Supreme Court, Irish Free State).
Cf.
Webster
V.
Cohen Bron.
(1913) 6
B.
92:
Clapp
v.
Carter
(1914) 7
B.
28;
Poffer
V.
John Welch
d
Sons.
Ltd.
[1914] 3 K.B. 1020;
White
v.
Lcicestcrshire
Colliery
and Pipe
Co.,
Ltd.
(1932) 25
B.
189
(H.L.);
Bedford
v.
Bell
d
Whinney. Ltd.
(1933) 26
B.
161;
Elliott
v.
Great
Northern
Ry.
(Ireland)
(1934)
69
I.L.T.R.
3
(C.A..
Irish
Free State);
Ifolborough
.v,
United Dairies (London). Ltd.
(1937) 30
B.
372;
Hodge
v.
Wakefield Trrnily Football Club
(1937) 30
B.
359:
McNulty
V.
Count!/
Donegal
Joint Railways Committee
119431
1r.R.
549
(Supreme
Court.
Irish Free State). See
al~o
McDonncll
V.
Corm
Iompair Eircantr
(1054)
89
I.L.T.R.
181
(Supreme Coort,
Republic
of
Ireland).
10
(1911) 5 B. 133.
11
(1904)
6
F.
375.
12
6
F.
383.
13
6
F.
384.
And see
Brown
V.
Lochgelly
Iron
rE
Coa!
CO.,
Ltd.,
1907
S.C.
198
(Court
of
Semion).
JULY
1956
INSURANCE CLAIMS: CAUSE FOR DELAY
855
person not instructed in physiology might not have understood
what the doctor said."
The line may be thin between this class of case and that where
the claimant delays because he does not know the nature
of
a
disease he has contracted.
In
R(1)
82/53," the claimant got a
skin rash. He did not know what
it
was, but he knew
it
was due
to his work. After treatment at a medical centre for some nine
months, hc saw a dermatologist, who diagnosed the troublc as one
of
the prescribed diseases. The claimant then claimed. The local
appeal tribunal held it was reasonable not to claim until he
knew he had
a
prescribed disease. The commissioner reversed this
decision, holding that the claimant's delay was due simply to
ignorance of his rights
or
of
the procedure for claiming. He could
have left the question whether he had a prescribed disease to be
decided by the national insurance (industrial injuries) machinery.
It
is different, and back over the line again, if the claimant was
unaware that he had a disease at all. In
R(I)
6/54,
the claimant
had been twenty-five years a coalminer, including fourteen years at
the coalface. At the age of forty-two he was short of breath and
not working to his
own
satisfaction. Accordingly, he left the pit
and obtained lighter work elscwhere. He thought hc was healthy
but growing old. Two years later, a mass radiography unit visited
his workplace and he discovered he had pneumoconiosis, and must
have had
it
since his coalmining days. He then claimed disable-
ment benefit, as pneumoconiosis is a prescribed disease for coal
miners.
It
was held that the claimant had reasonable cause for the
delay, and was entitled to benefit as from the date he left the pit.
14
The
I'
latent or trivial
"
principle
has
also been applied in New South WaleH:
Abdulla
V.
Bastany
(1931) 22
Aust.Dig.
1269;
Flint
V.
Lithgora Valley
Colliery
Co.,
Ltd.
(1937)
29
Aust.Dig.
452;
South Australia:
Carswell
v.
Jannsen
(1912) 22
Aust.Dig.
1266;
Victoria:
King
v.
Australian
Paper
Manufacturers, Ltd.
(1943)
29
Aust.Dig.
459;
Western Australia:
Smith
V.
Kalgoorlie
d
Boulder Firewood
Co..
Ltd.
(1917) 19
W.A.L.R.
69;
New
Zealand:
Sillick
v.
Taupiri
Coalmines, Ltd.
[1922]
N.Z.L.R.
513;
Cross
v.
Cole
[1932]
N.Z.L.R.
1588;
Heath
V.
Waihi Gold-mining
Co.,
Ltd.
[lOS5]
N.Z.L.R.
103;
Peacock
v.
Martha Gold-mining
Co.,
Ltd.
[1936]
N.Z.L.R.
25;
Giruin
v.
Bay
of
Islands County
[1938]
N.Z.L.R.
258;
Penberthy
v.
Martha
Gold-mining
Co.
(Waihi), Ltd.
[1944]
N.Z.L.R.
377;
Shotford
v.
Andersona.
Ltd.
[1949]
N.Z.L.R.
20; U.S.A.:
see Rieaenfeld
&
Maxwell,
Modern
Social
Legislation,
p.
333;
(note)
6
Loyola
L.It.
79;
District of Columbia
("
fiatii-
factory reason
")
:
145
A.L.R.
1285, 1286;
Idaho
:
145
A.L.R.
1285
;
Indiana
:
78
A.L.R.
1255. 1256;
Kentucky:
92
A.L.R.
510, 145
A.L.R.
1285;
American
ffolling Mill
Co.
v.
Stcuens
(1942) 145
A.L.R.
1256;
Louisiana: Tate,
Workmen's Compensation Claimants' Latent
or
Unknown InjurieR-Pre.
scription
"
(1951) 12
Louisiana L.R.
73;**
Massnchusetts:
107
A.L.R.
821;
145
,P.L.R.
1287
:
Wisconsin
:
Larson, Model Workmen's Compensation
Act
(1955) 23
Tennessee L.R.
838, 841;
Maine:
78
A.L.R.
1249, 12.56:
Tennessee:
78
A.L.R.
1251; 145
A.L.R.
1288;
(note)
(1954)
8
Vanderbilt
L.R.
161;
Virginia:
78
A.L.R.
1252;
New York ("sufficient reason"):
107
A.L.R.
821; 145
A.L.R.
1285, 1286, 1287;
Oklahoma:
78
A.L.R.
1254; 145
A.L.R.
1285;
Missouri ("good cause"):
92
A.L.R.
510; 145
A.L.R.
1287;
Texas
:
145
A.L.R.
1285, 128386.
15
And see
Egerton
V.
Moore
(1912) 5
B.
284;
Clapp
v.
Carter
(1914) 7
B.
28;
Potter
v.
John
Welch
d
Sons,
Ltd.
[I9141 3
K.B.
1020;
Foz
v.
Barrow
Haemalite
Steel
Co.,
Ltd.
(1915)
8
B.
431.
856
THE
MODERN
LAW
REVIEW
VOL.
19
Similarly, the claimant would succeed
if
the delay was caused by
reasonably not realising that the disablement was due to
his
work."
Furthermore,
it
has been held under the Workmen's Compensation
Acts that a mistake as to the date of the accident may be reason-
able cause for delay.I7
Znability to prove the case
Inability to prove the case, due to some formal impediment or
uncertainty of fact, constitutes good
or
reasonable cause for
delay,18 as has also been held under workmen's compensati~n.'~
Jn
R(S)
29/52,
the claimant's doctor issued a final certificate;
the claimant thereupon changed his doctor and go$ a certificate
of
incapacity from his new doctor. This took some time, and was
held to be good cause for delay.
In
R(S)
86/52,
the claimant asked
his doctor for a certificate of incapacity; she said that was not
necessary, and did not give one until some time later. The
claimant was held to have good cause for delay.
In
R(I)
69/52,
on
a claim for disablement benefit the medical board said the claim-
ant's
loss
of faculty was not likely to be permanent. The
claimant then withdrew his claim before
it
was adjudicated
on.
Five months later
(i.e.,
four months late), he claimed again, as
it
was
now
clearly probable that the disability was permanent.
A
reexamination by the medical board showed a likelihood of per-
manency. This claim was allowed, and the commissioner held that
inability to prove a case was reasonable cause for delay.
Misunderstanding oficial information
It
is said that the ignorant must inquire.
It
they do, the question
will immediately be encountered
:
is their misunderstanding
16
R(I)
51/64.
See
also
Baldcoin
v.
L.N.E.R.
(1936)
29
B.
227;
Smethurst
V.
Beaumonts (Manchester), Ltd.
(1940)
33 B.
271.
New
South Wales:
Cram
V.
Fresh Food and Ice
Co.,
Ltd.
(19%) 22
Aust.Dig.
1265;
Dixon
v.
Caledonian Collieries, Ltd.
(1931) 22
Aust.Dig.
1270;
Watta
v.
Cameron
d
Sons. Ltd.
(1937)
29
Auat.Dig.
452;
Richardson
v.
Austral
Stcuedoring and Lighterage
Co.,
Ltd.
(1939) 29
Aust.Dig.
459.
Western
hUstr8liU:
Bridson
V.
Perth Diocesan Trustees
(1925) 27
W.A.L.R.
96.
U.S.A.: Riesenfeld
&
Mnxwell,
roc.
cit.,
last note
14,
ante;
D.C.:
92
A.L.R.
509;
New York:
107
A.L.R.
822;
Oklahoma:
78
A.L.R.
1253;
Rhode Island:
78
A.L.R.
1257;
Texas:
78
A.L.R.
1253; 145
A.L.R.
1288;
Virginin:
78
A.L.R.
1252.
17
Nolan
v.
Duigan
(1945) 80
I.L.T.R.
49
(Supreme Court, Irish Free State).
18
Unomployment benefit:
C.U.
78/49;
sickness benefit: R(S)
29452;
R(S)
36/62;
disablement benelit
:
R(I)
69/52.
And see
C.G.
153/49
(widow's pension);
24596/31
(unemployment insurnnce).
19
Tibbs
v.
Watts, Blake, Bearne
d
Co..
Ltd.
(1909) 2
B.
164;
Eke
v.
Hart-
Dyke
[1910] 2
K.B.
677;
Kitchen
V.
C.
KO:!
d
Co.
(1931) 25
B.
294
(H.L.,
whore, at p.
306,
Lord Atkin commented: Reasonable cause for failure
to
make
a
claim for
nn
accident seems to me
a
differedf thing from reaeonable
cnuse
for
fnilure
to
make
nn
accident
");
Ccoilyrn
.v.
Aberbeeg Collieries, Ltd.
(1936)
29
B.
273;
Easterling
v.
Peek, Frean
d
Co.,
Ltd.
[1938] 2
K.B.
300.
New South Wnles:
McComas
V.
Coldsbrough Mort
d
CO.,
Ltd.
[1949]
Auat.
Dig.
630.
And see
Williams
v.
New British Rhondda Colliety
Co.,
Ltd.
(1932) 25
B.
76;
Flinders
v.
A. A. Jones
d
Shipman, Ltd.
(1932) 25
B.
563;.
Dunne
v.
Oflaly
C.C.
[1930]
1r.R.
358
(Supreme Court, Irish Free State).
Cf.
Holt
v.
Andrew Hobson
d
Sons
(1930) 23
B.
242.
See p.
353,
ante.
JULY
1956
INSURANCE CWMS: CAUSE FOR DELAY
357
of the answer good or reasonable cause for delay? In
C.S.
618149,
it was said that a mistake
as
to the meaning of official
information which
a
reasonable man might well make was good
cause, In
R(S)
14/54,
the claimant for sickness benefit, who was
self-employed, had previously been told by ministry officials that
a self-employed person was not entitled to benefit. That wns with
reference to a claim for unemployment benefit, but the claimant
thought it applied to any benefit. Accordingly, he did not apply
for sickness benefit until corrected by a hospital almoner. He was
held to have good cause for the delay. Nothing was said about
reasonableness in this case.
Acting on wrong advice
In
88/50
(U.B.),
the Northern Ireland umpire said that while
ignorance alone would not avoid forfeiture for delay,
if
“any
action, advice,
or
notification,
or
lack of such by the Ministry
or
the Insurance Officers dealing with the claimant’s case, placed him
in
a
position which caused
or
could have contributed substantially
to the claimant’s misapprehension and consequential failure to take
action in accordance with the regulations,” then there would be
good cause for delay.’O
In R(U)
6/52,
a claim
for
unemployment
benefit was turned down by the insurance officer
on
the ground
that, being
n
seasonal worker, the claimant was not entitled in .the
circumstances.
His
decision was abed unanimously by the local
tribunal. The claimant did not claim again until after the com-
missioner had decided in another case that people of the claimant’s
class were not seasonal workers. She then claimed again for
certain past periods, and the commissioner held she had
good
cause
for the delay, having acted rensonably.’
Where the wrong advice is given by
a
solicitor the same prin-
ciple appears to operate. In
C.S.T.
10/50,
the claimant either
was advised by his solicitor that
a
claim for injury
or
disablement
benefit would prejudice
a
common law claim against
his
employer
or
reasonably thought that he had been
so
advised. There was
held to be reasonable cause for claiming late. Again, holding
wrong
advice by a solicitor to be good cause for delay in claiming sickness
benefit, the commissioner said
(C.S.
50/50)
:
‘‘
The claimant’s
rights under the National Insurance Scheme do not depend upon
official policy
or
upon matters which are peculiarly within the
knowledge
of
the Ministry, but upon the legal interpretation of the
National Insurance Acts and the regulations made thereunder, a11
of which are available to the public. A solicitor is legally qunlified
to interpret Acts of Parliament and regulations, and is admitted
to the roll of solicitors for the purpose,
inter alia,
of giving ndvice
thereon
to
members of the public.
It
is perfectly reasonable
for
a
20
And nee 145
A.L.R.
lb9
(Nevads).
1
And
aeo
tho following unemployment insurance canes: 10803/30; 19970/32;
4283/33; 6753135; 142144
(Northern
Ireland).
VOL.
19
24
a58
THE MODERN LAW REVIEW
VOL
19
claimant to consult a solicitor
on
such a matter and to accept his
advice.
In
saying this
I
must not be understood to detract
in
any
way from the advice given by the Minister to insured persons, that
if
in doubt they should ask their nearest National Insurance Office
for help and explanation.”
It
is probably otherwise by now with doctors.
In
C.S.
286/49,
on
a claim for sickness benefit,
it
was held good cause
for
delay
that the claimant had acted
on
wrong advice by a do~tor,~ but the
commissioner, while recognising its existence, said that the con-
fusion between the national insurance scheme and the health service
would become progressively less justifiable.
Being misled by his
own
employer generally does not constitute
good cause for a claimant’s delay.‘
In
R(1)
28/54,
the claimant
had an industrial accident.
A
wages clerk told her that the wages
department would look after her benefit claim. Eleven days later
she received payments which she thought were injury benefit.
When she subsequently discovered her error she made
a
claim.
The commissioner held there was
no
reasonable cause for delay
during the first eleven days, but that there was reasonable cause
from the end of that period until she discovered the true position.
The eleven days were covered by the ordinary ignorance principle
:
the claimant should have asked the ministry
or
read their
pamphlets. Thereafter, though, a reasonable person might think
he had correctly ascertained the position and
so
not inquire.6
In
C.S.
80/49,
the claimant was employed by the War Department.
He was told by
a
superior that a man
off
sick should send his
certificates to the superior’s office and his pay would be made up.
He understood that his employer was working in conjunction with
the national insurance offices. He accordingly sent his medical
certificates to his superior, but later discovered he should claim.
The commissioner held that there was good cause for the delay:
the claimant’s belief was reasonable, at least where his employer
was a government department.b
You certainly cannot rely
on
every Tom, Dick and Harry.
In
C.S.G.
9/49,
on
a claim for attendance allowance, the commis-
sioner held that wrong advice by a neighbour was
not
good cause
for delay in claiming. In
4681/88,
a case under the old unemploy-
ment insurance scheme it was held that being misled by a trade
union official was not good cause.
2
And see
Burns
v.
Commissioner
for
Railways
(1939)
29
Aust.Dig.
467
(New
South Wales).
8
Cf.
1259/49
(S.B.).
(Northern Ireland);
WiZZiams
v.
Henderson
d
Pollard,
Ltd.
[1946] N.Z.L.R. 238.
4
Cf.
McComas
v.
Goldsbrough Mort
d
Co.,
LLd.
[1949] Aust.Dig.
590
(New
South Wales);
Simpson
v.
Geary
[l921] N.Z.L.R. 285;
Wilson
v.
Gannawoy
d
Co.,
Ltd.
[1932] N.Z.L.R. 843;
145
A.L.R. 1284 (Texas).
6
And
see
C.S.
696/49; 2/52
(S.B.)
(Norther?‘ Ireland);
Prophet
V.
Roberta
(1918) 11
B.
301;
cases
cited under heading Defective Mode
of
Claiming,”
ante.
6
To
the name effect
is
2/52
(S.B.)
(Northern Ireland).
JULY
1966
INSURANCE CLAIMS: CAUSE
FOR
DELAY
859
THE
CRITERION
The large number
of
decisions given since the new schemes came
into operation in mid-1948 should give
a
pretty clear idea of how
the commissioner and the umpire arrive at their results. Unfortu-
nately,
it
remains impossible to be certain how they do decide what
constitutes good
or
reasonable cause for delay. True, the reports
often disclose a closely reasoned argument as to whether there is
good
or
reasonable cause in the particular case, generalising about
classes of cases,
or
even purporting to apply to all types of cases.
But throughout there is an assumption that there is an ascertained
criterion
of
goodness
or
reasonableness. Sometimes
it
is stated
in general terms what these abstractions mean, but there is nowhere
any indication how the definition was arrived at.
For
a start, thc commissioners and umpire say that
“good” and “reasonable
when here applied to cause,
are synonymous adjectives. They may be, but there are
arguments
for
the contrary view: it is hard to get over
the
use
by Parliament of different expressions in two National
Insurance Acts passed about the same time. Next, the standard
of reasonableness is objective, which, in a sense, is obvious; but
that does not determine what the standard is to be. That selected
in the reported decisions is the standard of the reasonable person
in the claimant’s position. One does not know why, and there are
arguments against that too
(e.g.,
it
might be that what is reason-
able must be looked at from the ministry’s point
of
view).
In
any
case,
it
does not get you anywhere until you know what the attri-
butes of the reasonable person are. The reasonable person
is
not
identified in the reported decisions. He might be the average
person, the average claimant, the prudent claimant,
or
one
of
several other types. In their
1052
report
on
time limits,‘ the
National Insurance Advisory Committee state that these should not
‘‘
be
so
strict
as
to prejudice what is in our opinion a basic principle
of any contributory insurance scheme, namely, that when
a
person
experiences
a
contingency against which he is insured, he should
not be precluded from drawing the appropriate .benefit by any
act
or
default
on
his part, for which the ordinary man would hold
that he had a good excuse.” The decisions identify the standard
no
more closely than as that of the reasonable person. How does
the commissioner
or
umpire know what that creature would do in
the circumstances
of
a given case? Experience?
Or
does the
adjudicator consider what he himself would do
?
Is reasonableness
the standard
of
the intuitive commissioner
?
It
is not
known,
and
a search
on
the Clapham omnibus will not help. What is
known,
however, is that the standard is in some respects very high.
This
is strikingly illustrated by the ignorance cases.8 The reasonable
7
Cmd.
8483,
p.
9.
8
Cj.
Cmd.
8483,
pp.
9-11.
255
860
TEE
MODERN
LAW
REVIEW
VOL.
19
person who is firmly (but erroneously) convinced that he knows the
rules of the scheme is simultaneously aware of his
own
ignorance,
so
he goes straight along to the local national insurance office
to
check up. Could
it
be that when faced with a plea of good
or
reasonable cause for delay, the adjudicator makes a common-sense
guess as to what is the fair and convenient way of holding an even
hand between the claimant and the ministry
?
Do
the commissioner
and umpire, after all, interpret words without fulfilling the objects
for which adjudication
on
social security legislation was withdrawn
from courts of law?
One of the reasons for giving jurisdiction to administrative
tribunals was to secure informality, and great progress has been
made in this direction. Another reason was suspicion of the way
judges interpreted social security legislation. One of the objects
sought to be achieved was greater attention
on
the part of the
adjudicator to the policy of the legislation. That is not to differ
from the commissioner who said
(C.S.
50/50):
“The claimant’s
rights under the National Insurance Scheme do not depend upon
official policy
or
upon matters which are peculiarly within the
knowledge
of
the Ministry, but
upon
the legal interpretation of the
National Insurance Acts and the regulations made thereunder.
.
.
.¶’
These rights depend upon interpretation
in
the light of the legis-
lative policy aimed
at
by .the Acts.
‘&
Reasonable
and
good
are not words whose meaning is
constant. To find out what they mean in the Acts means finding
out what they were put there for. That involves asking why time
limits were prescribed for claiming benefits. This would be gathered
primarily from the Acts and regulations, but there are
no
inhibi-
tions about evidence and legislative history could be invoked.
(In
point of fact, this is unhelpful-Parliament seems to have thought
good
’)
and
reasonable
sufficient guidance for the adjudicator.)
Once it has been ascertained why there are time limits, then-
subject to any argument that
good
’¶
and
‘&
reasonable
’¶
differ-
a good
or
reasonable cause for delay should be one which does not
conflict with that policy,
or
which brings in some element over-
riding that policy. That is to say, where there is cause for delay,
the late claim should be allowed
if
to disallow
it
would not further
the policy for whose furtherance the time limit was enacted,
or
if
to
allow
it
would further some policy considered to outweigh in desir-
ability the policy behind the time limit. While the onus of proof
that there was good
or
reasonable cause for delay is doubtless with
the claimant,
it
must be remembered that he is not trying to make
out a deserving appeal to charity but asking the arbitrator to
construe legislation regulating rights for which he has paid.
Tm
LIMITS
Time limits for claiming may have been introduced for one
or
more
of
the following reasons:
JULY
1956
INSURANCE
CLAIMS:
CAUSE
FOR
DELAY
861
(a) To put an obstacle in the way of fraudulent claims by
making sure that the ministry can investigate the facts at
the time of the event out of which the claim arises
or
shortly
after.
A
pretty constant
rate of insured happenings can be assumed, and a short
time limit will on that assumption ensure a pretty constant
rate of claims.
(b) To further administrative convenience.
(c)
To
save the fund money.
(d) To make sure that anyone who might otherwise be in doubt
whether to claim
or
not decides, without time to reflect, in
favour of claiming.
(e) To keep people up to scratch by putting in
an
arbitrary but
entertaining rule, like two spades overcalls two hearts.
There is
no
evidence that (d) was intended by the legislation.
A person who believes his employer will pay him full wages during
sickness, and makes
no
claim until he finds he is mistaken, has
no
good cause for his delay
on
the authorities.
$0
he should claim
immediately
on
being taken ill in case he turns out wrong about
his
employer; and even though he does not want the insurance money
in
the event of getting full wages he is unlikely to give
it
back
once claimed. The result
is
to encourage people to resort to the
fund when, but for the reported decisions, they might not have
done
so.
Similar arguments apply to the decisions that
it
is not
good cause for delay to believe that the employer
will
pay sickness
benefit, to think that a sickness will be of very short duration,
to
expect to be unemployed for only one day,
or
for any other reason
to expect to be able to save the insurance fund. Arguments could
be put up to support the view that insured persons should always
claim when entitled even
if
they do not really want
or
expect to
want the money, but that
does
not seem to be the policy behind
the legislation governing time limits for claiming.
Suggestion (c) can be correct only
on
the assumption that
Par-
liament hoped for late claims and that regulations were framed
so
as to make as many claims late as possible.
Probably (a) and (b) between them supply the main answer.
The former
is
the policy of statutes of limitations. The Recorder
of Londonderry, sitting at Coleraine County Court9
on
a
work-
men’s compensation case in
1909,
said that service
of
the notice as
soon
as practicable after the accideht was prescribed for the purpose
of preventing fraudulent claims.
In
Armstrong
v.
Canada Atlantic
Ry.,’O
Osler
J.A.,
giving the judgment of the Ontario Court of
Appeal, said: “The object of the notice is to protect the employer
against stale
or
manufactured
or
imaginary claims, and to give him
an opportunity while the facts are recent of making inquiry into
the cause and circumstances of the accident. The several clauses
9
M’CZelZand
v.
Todd,
2
B.
479.
10
(1902)
4
O.L.R.
560,
667-668.
862
THE
MODERN
LAW
REVIEW
VOL.
I9
which bear upon the subject are very loosely fitted together, but
the stringency of the original provision has been much relaxed, and
the injured workman is evidently the &st object of the legis-
lature’s care.” Convenience of administration did not enter into
workmen’s compensation, and that must probably be considered
under national insurance. The National Insurance Advisory
Committee, in their
1952
report
on
time limits,’l alleged these
were necessary “to protect the Insurance Fund against stale
nnd doubtful claims, and to secure speed and economy in
aaministr ation.
A
late claim does not conflict with policy (a) where there is
no
doubt about the facts, and should be allowed unless
it
upsets
the administration of the scheme. Even where there
is
doubt
about the facts, allowing
a
late claim may further some policy
preferred to policy (a).
No
late claim would ever be consistent
with policy (b),
so
one for which there was good
or
reasonable
cause must be one whose acceptance furthers some policy whose
desirability outweighs that of (b). Thus the probability
is
that
a cause
is
good
or
reasonable for this purpose
if
it
is such that
(1)
there
is
some policy which would be furthered by allowing
the claim to be made, and which is preferred by the legislation
to the policy of securing convenient administration, and
(2)
either
(i)
allowing the claim to be made could not
so
far as
is
discernible
lead to fraud
or
(ii)
allowing the claim to be made furthers some
policy preferred by the legislation to the rigoroui safeguarding
against fraud provided by the time limit for claiming. The
adjudicator faced with any proved cause for delay should ask
himself whether
it
satisfiee these requirements. In each case the
policy he chooses should be the one he thinks intended by the
legislation to be predominant,
or
which predominates according
to
its
spirit. Commissioners and umpires should avoid sweeping
generalisations as to what causes are reasonable
or
good.
If
they
confined their reasoning to the selection of the policy
to
be applied
in the case before them they would give local tribunals and other
subordinate determining authorities much more valuable guidance
than is given by their present type of decision. When using such
flexible expressions as
good cause
and
‘‘
reasonable cause
’’
Parliament intended to give the adjudicators a policy discretion.
The appellate body of last resort has
no
mandate to ossify
it.11n
There remains in this connection the question of whether there
ie
any distinction between good (national insurance) and reasonable
(industrial injuries) cause for delay. The authorities regard them
as
identical. Ministry papers dealing with claims use the two
expressions interchangeably under each Act.
Two
words can mean
11
Cmd.
8483,
9.
1U.
See
the date
in
the
House
of
Lode
(175
Hansard
001s.
616460)
on
the
astoniehing poeition
revealed
by
Lord
Chorley
(c~E.
616639).
No
effeotive
reply
wae
made,
snd
nothing
WBB
done
about
it.
JULY
1966
INSURANCE
CLAIMS:
CAUSE
FOR
DELAY
868
the same thing, though in this case one might seem at first sight
to look for intelligence and the other morality. In any case,
why are the two used? The National Insurance (Inchstrial Injuries)
Act;
1946,
can trace
its
“reasonable
back to the Workmen’s
Compensation Acts (reasonable cause) and to the old national health
insurance scheme (reasonable excuse). The National Insurance
Act,
1946,
will find the parentage of its “good” in the old
Unemployment Insurance Acts. Today the schemes are
so
similar
in structure, and the prescribed time provisions in each
so
generally
alike, that
it
is difficult to see what differences could have been
intended in the types of relieving causes for delay. Moreover,
Parliament appears to have thought the provisions identical. Apart
from
good cause
and
‘‘
reasonable cause,” Acts in the Common-
wealth and United States of America have referred to “unfore-
seen cause,”
‘‘
reasonable excuse,”
(‘
satisfactory reason
and
sufficient reason.” All these expressions have received similar
treatment. This supports the view that contemplation of policies
and not of words will provide the guide for deciding cases.
CRITICAL
ANALYSIS
The hypothesis here
is
that the policy approach will restore
dis-
cretion and that
it
is inappropriate to lay down general propositions
as to whether
a
cause put forward in a particular case will be good
or
reasonable in future cases. Of course, the commissioner’s
or
umpire’s judgments will be taken as precedents. But in a case
for example, in which ignorance is held not reasonable cause, the
precedent value should be not
so
much
on
the issue
of
whether
ignorance
is
reasonable cause as
on
the policy considerations to
be taken into account by later adjudicators faced with a plea of
ignorance. Accordingly, it is not proposed here to suggest what
causes should be held
or
not held to validate a late claim. What
is
suggested, however, is that some of the decisions should have
been different. A couple of examples will illustrate the theme.
The fact that in most respects decisions have been uniform in
many countries under many schemes embodying many forms of
words interpreted by many types of adjudicators should not be
given too much weight in favour of their correctness. Much
of
the uniformity
is
due to widespread citation of English workmen’s
compensation cases.
In
the ignorance cases
it
has been far too difficult to establish
good cause.
It
may be desired to train people who are in doubt
about their rights to inquire
at
the ministry’s offices
or
of
a
solicitor. To that end
it
may be correct to hold there is
no
good
cause where
a
person acts
on
gossip
or
does not trouble himself
to investigate at all. But it must be remembered that many
claimants (and especially those who plead ignorance) are ill-
educated, many are dull-witted
or
mentally retarded, many are
a64
THE
MODERN
LAW
REVIEW
VOL.
19
sick
or
worried at the material time. The scheme is
a
complicated
one, the S.1.s and
S.R.
&
0,s
are not much easier to understand
than the explanatory memoranda issued with some of them, and
the ministry’s pamphlets are not’ automatic reading (and
it
is
unrealistic merely to say they ought to be) for this class of person.
If
someone who suffers an industrial accident has never heard of
the insurance scheme,
or
has not heard of the existence of a pre-
scribed time for claiming, one of the policies to be taken into
account is that of protecting him and his dependants from his
own
incompetence.
If
there
is
no
doubt that the relevant injury
arose out of and in the course of insurable employment,
it
may
be better to pay injury benefit
on
a
late claim than to send the
claimant to the National Assistance Board. Sloughing
off
the claim
for injury benefit because
it
is late may appear doubly absurd
where the facts are
so
plain that the accident founds a common
law claim for damages, for which the period of limitation is much
longer. Paltry economies should not be purchased at the price
of
a
justifiable sense of injustice. The Australian attitude to
ignoranceIa is closer to realism. There are indications that the
stricter rule operating elsewhere has been accepted with such
docility partly
on
account of the confidence of its first proclama-
tion and partly because of the widely disseminated illusion that
the common law has a general principle “ignorantis juris haud
excusat,” from whose sacred wisdom this rule is inevitably deduced.
Leniency,
on
the contrary, has been too easily accorded to those
who employ delegates
(e.g.,
probating solicitors in claims
for
death
grant), and where the delegate bungles the claim.
It
is not as
obvious as
it
might seem that the claimant has good cause for
claiming late where the agent has not. The fact that the client
can sue the solicitor in the death grant eases for negligence
or
equitable fraud is a factor which ought to be taken into account
against allowing the claim to be made late.
In short, an abandonment of addiction to grammar and logic,
of
declaratory manifestoes
of
statutory appearance when giving
judgment, of rigorous application by inferior adjudicators of the
merest
obiter
dicta
in earlier cases of superior adjudicators, and
replacement of these methods by
a
sincere and searching (and
grammatieel and logical) investigation of the policy questions
implicit in each case, will shake up the present received doctrines.
If
this is not done, administrative justice (at least
in
national
insurance and industrial injuries eases) will go the way of equity
under Lord Eldon.
If
it
is done, a vital discretion will revest
in the adjudicators. Harsh decisions make bad law.
11
See
p.
352,
ante.
*
LL.B.;
PII.D.;
Lecturer in Law at
Queen’s
University, Belfast; recently
appointed Professor
of
Law
in
the
University
of
Malaye.

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