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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Shearer v. Miller & Sons [1899] ScotLR 37_80 (17 November 1899)
URL: http://www.bailii.org/scot/cases/ScotCS/1899/37SLR0080.html
Cite as: [1899] ScotLR 37_80, [1899] SLR 37_80
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SCOTTISH_SLR_Court_of_Session
Page: 80↓
Court of Session Inner House First Division.
[Sheriff Court of Lanarkshire.
v.
Facts:
In a case stated under the Workmen's Compensation Act 1897 it appeared that the workman had not given notice of his claim till seventeen days after he had met with the accident, and that he left his employment on the day on which it occurred. The Sheriff found “that it was not proved ( a) that the want of or delay in giving notice was occasioned by mistake or other reasonable cause; and ( b) that the respondents had not been prejudiced in their defence by reason of the want of or delay in giving notice.”
Held that the onus of proving that the employer had not been prejudiced lay in the first instance upon the workman, that it did not appear from the Sheriff's findings that this onus had been discharged, and that accordingly the workman's claim to compensation was barred.
Observations as to the evidence required to discharge this onus.
This was a stated case under the Workmen's Compensation Act 1897, in which the appellant John Shearer claimed damages in respect of injuries sustained by him while in the employment of the respondents George Miller & Sons, coal-masters, Glasgow. The following was the case as stated by the Sheriff-Substitute ( Guthrie):—“This is an arbitration under The Workmen's Compensation Act 1897, brought before the Sheriff of Lanarkshire at Glasgow, at the instance of the appellant
Page: 81↓
against the respondents, in which the Sheriff is asked to ordain the respondents to pay to the appellant the sum of 17s. 6d. per week, beginning the first weekly payment on the 17th of March 1899, with interest from the date of citation till payment, and to find the respondents liable in expenses. The appellant avers that on the 24th of February 1899, while he was in the employment of the respondents as a miner, he was taking down a piece of coal, and was for that purpose striking a wedge with a hammer; that in doing so his left hand was wrenched or twisted to such an extent that he had been unable to work since said date, and that his wages at the date of said accident were 35s. per week.
The case was heard and proof led before me on this date (June 14, 1899), when the following facts were established;—(1) That on the 24th February 1899 the appellant, while in the employment of the respondents in their No. 4 Swinehill Pit, Larkhall, was engaged in cleaning out a coal face by means of a wedge and hammer, and that in driving in the said wedge he severely strained his left wrist, whereby he has since been unfit for work. (2) That the appellant forthwith left the pit, and was attended by Dr Rogerson daily for four weeks, and thereafter less frequently until the date of the hearing. (3) That the first notice of the appellant's claim for compensation was sent to the respondents on 13th March 1899. (4) That the appellant, who was residing with his brother-in-law, was told by Dr Rogerson within a day or two after the accident that the injury was serious, and that his recovery would be tedious. (5) That the appellant's wages amounted to 22s. 8d. per week. (6) That it was not proved ( a) That the want of or delay in giving notice was occasioned by mistake or other reasonable cause; and ( b) that the respondents had not been prejudiced in their defence by reason of the want of or delay in giving notice.
I accordingly held that the proceedings were not maintainable by reason of the provisions of section 2, sub-section 1, of The Workmen's Compensation Act 1897, and I assoilzied the respondents and found the appellant liable in expenses.
The question of law for the opinion of the Court is—Does the onus of proving that the respondents were not prejudiced in their defence by want of due notice rest upon the appellant?”
By section 2 (1) of the Workmen's Compensation Act 1897 it is provided—“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 time of death: Provided always that the want of, or any defect or inaccuracy in such notice shall not be a bar to the maintenance of such proceedings, if it is found in the proceedings for settling the claim that the employer is not prejudiced in his defence by the want, defect, or inaccuracy, or that such want, defect, or inaccuracy was occasioned by mistake or other reasonable cause.”
Argued for appellant—There had been no evidence on either side as to prejudice. The Sheriff had proceeded on the view that there was an onus resting on the appellant of proving that the employers had not been prejudiced, but the case of M'Lean v. Carse & Holmes, May 30, 1899, 1 F. 878, showed that the existence of prejudice must be proved and not assumed.
Argued for respondents—The appellant was bound to place before the arbiter materials to enable him to decide the question. The arbiter had found that it was not proved that the employers had not suffered prejudice, and in effect his finding was that the appellant's delay had been unreasonable and unnecessary. It was only if the arbiter found in the course of the proceedings that the employer had in fact not been prejudiced that the proviso in the statute would apply. In M'Lean v. Carse & Holmes, supra, there had been no proof, and it was clear that if the claimant were allowed a proof he might be able to show that the employers had not suffered prejudice. Here, on the other hand, the Sheriff having before him the averments of the parties had allowed a proof, and as the result of it had decided that the appellant had failed to show that no prejudice had been suffered. To the objection that the respondents' argument placed the workman in the position of having to prove a negative, the answer was that this was precisely what was required in express words by the statute. An example of the Court imposing the onus of proving a negative was to be found in M'Clure, Naismith, and Others v. Stewart, July 22, 1887, 15 R. (H.L.) 1.
At advising—
The appellant, who was a miner in the employment of the respondents, met with an accident on the 24th February 1899. The first notice of the appellant's claim was sent to the respondents on 13th March 1899.
Section 2, sub-section (1), of the Act provides that proceedings for the recovery of compensation under the Act shall not be maintainable unless notice of the accident has been given as soon as practicable after the happening thereof. But it is provided that the want of such notice shall not be a bar to the maintenance of such proceedings if it be found in the proceedings for settling the claim that the employer is not prejudiced in his defence by the want of such notice, or that such want was occasioned by mistake or other reasonable cause.
The Sheriff has found that it is not proved that such want of or delay in giving notice was occasioned by mistake or other reasonable cause. That being so, the appellant cannot recover unless it is found in the
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The Sheriff has found that it was not proved that the respondents had not been prejudiced in their defence by reason of the want or delay in giving notice, and he held that the proceedings were not maintainable by reason of the provisions of section 2, sub-section (1) of the Act, to which I have already referred, and has assoilzied the respondents.
The question of law which is put to us by the Sheriff is, whether the onus of proving that the respondents were not prejudiced in their defence by want of due notice rests upon the appellant.
If we answer this question in the affirmative then the judgment will stand, because in that case it was the duty of the appellant to prove that the respondents had not been prejudiced. If we answer it in the negative then it was the duty of the respondents-to prove that they had been injured, and the judgment will not stand.
From the way in which this question is put to us I gather that nothing appeared in the proceedings from which the Sheriff could draw an inference one way or the other as to whether the respondents had been prejudiced or not, otherwise, no doubt, he would have found affirmatively one way or another. The appellant does not appear to have led any evidence that the respondents were prejudiced, because if he had led such evidence, however slight, if it was not met or contradicted by the respondents, the Sheriff would have been entitled, and would, I presume, have drawn the inference, that they had not been prejudiced. So, also, it would appear that the respondents had not led any evidence on the point, as otherwise, no doubt, the Sheriff would have dealt with it affirmatively.
This, I should think, was an uncommon case, and not likely to be of frequent occurrence.
On the construction of the Act I am of opinion that, in the first instance, the onus lies upon the appellant to prove that the respondents were not prejudiced in their defence. The appellant, by failing to give timeous notice, has barred himself from maintaining proceedings under the Act, and he can only surmount the bar by proving either that the respondents were not prejudiced in their defence, or that the want of such notice was occasioned by mistake or other reasonable cause. But while I think that the onus lies, in the first instance, on the appellant, I do not think that the Act contemplated separate or preliminary proceedings with the view of determining whether the employer had been prejudiced or not. That fact is to be found in the proceedings, and I can understand that facts and circumstances appearing in the course of the inquiry may sufficiently show that the employer had not been prejudiced. The claimant is put to prove a negative, and I should think that very slight evidence would be sufficient to shift the onus on the employer, who certainly is in a position to prove the prejudice, if any, which he may have suffered.
I think we should answer the question put to us in the affirmative, and adhere to the Sheriff's judgment.
The Court pronounced this interlocutor—
“Answer the question in the case in the affirmative: Adhere to the deliverance of the arbitrator, and decern: Find the appellant liable in expenses, and remit,” &c.
Counsel for the Appellant— Glegg. Agents— Macpherson & Mackay, W.S.
Counsel for the Respondent— Campbell, Q.C.— J. Wilson. Agents—