Shotts Iron Company Ltd v Fordyce
| Jurisdiction | Scotland |
| Judgment Date | 19 July 1929 |
| Docket Number | No. 91. |
| Date | 19 July 1929 |
| Court | Court of Session |
Lord Justice-Clerk (Alness), Lord Ormidale, Lord Hunter, Lord Anderson.
Workmen's CompensationAct 1925 (15 and 16 Geo. V. cap. 84), sec. 14 (1) (b)Failure to claim compensation timeouslyMistake, or other reasonable causeWorkman aware of injury but continuing to work.
The Workmen's Compensation Act, 1925, sec. 14 (1), requires a claim for recovery of compensation to be made within six months of the occurrence of the accident causing the injury, but provides 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.
In April 1924 a colliery drawer injured his back in assisting to replace a derailed hutch. With the exception of a fortnight in September 1927 when he was off work for medical treatment, he continued at his usual occupation, earning full wages, until March 1928, when he left his employment to undergo treatment for trouble arising from the injury. In October 1928, while still incapacitated, he made a claim for compensation. In addition to the above facts it was established that the workman was suffering from muscular rheumatism and sciatica, and that these troubles arose from the injury in April 1924; that ever since the date of the accident the workman had associated his trouble with the accident; but that he had not intended to claim compensation so long as he was able to earn full wages. It was also established that, immediately after the accident, the workman had notified the fireman of the injury, but that the latter, considering the injury trivial, had not reported it to his superiors, and that prior to October 1928 the employers had no knowledge, either actual or imputed, of any intended claim.
Held (diss. Lord Hunter) that, although the workman was throughout aware of his injury, the fact that he was able to earn full wages in his ordinary employment for four years after the accident showed that he was not unreasonable in assuming that the injury was not such as would cause him to become incapacitated; and, accordingly, that his delay in claiming compensation was due to a reasonable cause within the meaning of sec. 14 (1) (b) of the Act.
Rankine v. Alloa Goal Co.UNK, (1904) 6 F. 375, and Ellis v. Fairfield Shipbuilding and Engineering Co., 1913 S. C. 217, followed.
In an arbitration under the Workmen's Compensation Act, 1925, in the Sheriff Court of Lanarkshire at Lanark, between Thomas Fordyce, colliery drawer, Carluke, and Shotts Iron Company, Limited, the Sheriff-substitute (Wilton) found that the claimant was barred from recovering compensation in respect that he had not shown reasonable cause for his failure to claim compensation timeously.* At the request of the workman he stated a case for appeal.
The case set forth that the following facts were established:(1) On 2nd April 1924 the appellant, while working as a drawer with the respondents, racked and injured the muscles of his back in assisting to replace a derailed hutch of coal. (2) The same day he reported his injury to the fireman, the proper official of the respondents to receive such notice. (3) The fireman, considering the injury trivial, did not report it to the under-manager of the colliery. (4) The appellant (with the exception of a fortnight from 16th September 1927 when he remained off work for medical treatment at his home) continued in the employment of the respondents at his usual occupation, earning full wages, until 15th March 1928, when he left their employment to undergo medical treatment for trouble arising from his said injury. (5) He became a patient of the Royal Infirmary, Glasgow, where, besides other treatment, he underwent, in October 1928, an operation on the lower part of his spine. (6) He suffers from muscular rheumatism in the lower part of his back and attendant sciatica in his legs, and such trouble is due to the effects of his said injury. (7) He was wholly incapacitated for work from 15th March 1928 until 21st January 1929, and since then he has been fit for light work. (8) The appellant made no claim for compensation within the statutory period. (9) The appellant throughout all material times suffered considerable pain and discomfort, and all along from the date of his accident he and his medical adviser associated his trouble with his injury. (10) He did not intend to claim compensation so long as he was able to earn his full wages in the employment of the respondents. (11) He claimed compensation in or about October 1928. (12) The respondents had no knowledge, actual or imputed, of the intention of the appellant to make a claim for compensation against them prior to October 1928.
The case further stated:I found in law that (1) the said injury to the appellant was the result of an accident arising out of and in the course of his employment with the respondents; (2) his failure to claim compensation timeously was without reasonable cause; and (3) he was accordingly barred from recovering compensation. I therefore refused to award compensation, and found no expenses due to or by either party.
The question of law was:In the foregoing circumstances was I right in refusing to award compensation to the appellant on the ground that he was barred from recovering compensation in respect that there was no reasonable cause for his failure to claim compensation timeously?
The case was heard before the Second Division on 10th and 12th July 1929.
Argued for the appellant;On the facts found proved by the arbitrator the Court was entitled to hold that reasonable cause for the failure to claim compensation timeously had been established.1 Although the workman was aware that he had been hurt as the result of his exertions in April 1924, and had notified this to the fireman, there was nothing in the circumstances of the accident to suggest that it would ever be necessary for him to claim compensation.2 The injury did not prevent him from continuing to work, and the fact that he was able to do so for several years really tended to confirm his original view that nothing serious had happened. This was not the case of a workman who, in the knowledge of an injury, had deliberately refrained from claiming compensation in the belief that he would get better, but of a man who did not realise the possible consequences of his injury.3 Misapprehension as to the serious nature of an injury amounted to reasonable cause, within the meaning of section 14 (1) (b) of the Workmen's Compensation Act, 1925,4 for a failure to claim compensation timeously. The present case was a fortiori of the Scottish cases of Rankine v. Alloa Coal Co.UNK5 and Ellis v. Fairfield Shipbuilding and Engineering Co.6 In England, although the tendency was to interpret proviso (b) somewhat more strictly than in Scotland, it nevertheless was recognised that the question of reasonable cause for delay in making a claim was one for determination on the facts of the particular case.7 The undernoted English cases, on which the respondents founded,8 were distinguishable, for in each there was either immediately supervening incapacity or, at least, clear indication of the gravity of the injury. Where delay was due to a workman's bona fide mistake the Court should not readily refuse to entertain his claim.9
Argued for the respondents;The question whether there was reasonable cause within the meaning of section 14 (1) (b) for failure
to make a claim within the time prescribed was one of fact,1 and here the appellant had not discharged the onus which rested upon him of proving that reasonable cause existed. Admittedly proviso (b) applied where the injury was latent or so trivial as to render immediate notice of a claim absurd.2 But it did not apply where a workman who was conscious of an injury took the chance of recovery and refrained from making a timeous claim.3 In such circumstances he was not entitled to prejudice his employers by delaying to claim, but was bound to proceed with his claim at once, and, if he was not then actually incapacitated, the Court would make a suspensory award.4 That course should have been followed by the appellant. The arbitrator's findings, and, in particular, finding 9, negatived the idea that his injury was trivial, and, that being so, the onus clearly rested on him to explain why his claim had been delayed. This case on its facts was distinguishable from the English cases on which the appellant mainly relied.5 In these cases the employers by their actings had led the workman to believe that his right to compensation was admitted. Here the employers had no knowledge, either actual or implied, of the workman's intention to make a claim. The cases of Rankine v. Alloa Goal Co.UNK6 and Ellis v. Fairfield Shipbuilding and Engineering Co.7 were also distinguishable, for there the workman was clearly under mistake as to the nature of his injury. Here, however, the arbitrator's findings precluded such a view.8 The arbitrator had rightly refused to entertain the claim. The question should, accordingly, be answered in the affirmative.
At advising on 19th July 1929,
Lord Justice-Clerk (Alness).The facts found in this stated case are comparatively few and simple. It may be convenient to set them out in full. They are as follow:[After quoting the findings of fact printed supra, his Lordship continued]The vital finding, in view of the controversy which has arisen between the appellant and the respondents, is the eighth, viz., that the appellant made no claim for compensation within the statutory period. That period is prescribed by section 14 (1) of
the Workmen's Compensation Act, thus: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...
To continue reading
Request your trial
-
Shotts Iron Company Ltd v Fordyce
...was proved that his failure to make his claim within six months was due to a "reasonable cause." (In the Court of Session, 19th July 1929—1929 S. C. 813.) In an arbitration under the Workmen's Compensation Act, 1925, in the Sheriff Court of Lanarkshire at Lanark, between Thomas Fordyce, col......
-
Gillespie v Convoys Ltd
...the failure was occasioned by mistake, absence from the United Kingdom, or other reasonable cause." 2 Fordyce v. Shotts Iron Co.SCELR, 1929 S. C. 813, Lord Justice-Clerk Alness at p. 817, 1930 S. C. (H. L.) 64, [1930] A. C. 503;Ellis v. Fairfield Shipbuilding and Engineering Co.,1913 S. C. ......