Scottish Court of Session Decisions

The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), section 2, sub-section 1, provides—“Proceedings for the recovery under this Act for compensation for an injury shall not be maintainable unless notice of the accident has been given as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, and unless the claim for compensation with respect to such accident has been made within six months from the occurrence of the accident causing the injury, or in case of death 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.”

This was a case stated for appeal by the Sheriff-Substitute of Fife and Kinross ( Hay Shennan) at Dunfermline in an arbitration under the Workmen's Compensation Act 1897 between George Brown, miner, and the Lochgelly Iron and Coal Company, Limited.

In the stated case the Sheriff-Substitute set forth the facts as follows:—“(1) On 20th November 1905, and for some months before, pursuer was in the defenders' employment as a brusher, in their Dora Pit, Cowdenbeath, the pursuer being a “workman,” the defenders the “undertakers,” and the said pit a “mine,” within the meaning of the Workmen's Compensation Act 1897.

(2) On that date, while pursuer was helping to push a hutch, his foot slipped, and he fell and racked the muscles on his left side and over his lower ribs. He continued at work, but three days later consulted Dr Selkirk, who recommended him to rest. Pursuer, however, continued at his work thinking the pain would disappear, but after working regularly during January 1906 he had to stop work on 6th February. Dr Selkirk had attended him continuously since the accident, and on 10th February sent him to Edinburgh Royal Infirmary. Pursuer recovered sufficiently to he able to return to work at full wages on 7th May 1906.

(3) Pursuer's inability for work between 6th February and 7th May 1906 was due to the accident of 20th November 1905, and that accident arose out of and in the course of his employment.

(4) Pursuer designedly did not give notice of his accident at the time, believing that his injuries would not keep him from work. The pursuer was labouring under ‘honest innocent mistake’ in so believing. After his visit to the Royal Infirmary on 10th February he realised that his injuries were more serious than he had thought, and he dispatched formal written notice of the accident to defenders on 14th February 1906.

(5) There is no satisfactory evidence on either side to show whether or not the defenders suffered prejudice by the delay in giving notice of the accident.

On these facts the Sheriff-Substitute found in law (1) that whether defenders were prejudiced or not by the delay in giving notice, such delay was due to reasonable mistake on the part of the pursuer; ….”

The questions of law for the opinion of the Court were, inter alia—“(1) Does pursuer's failure to prove that defenders were not prejudiced by his delay of three months in giving them notice of said alleged accident debar him from claiming compensation? (2) Was pursuer's failure to recognise the serious nature of his injury a ‘mistake or other reasonable cause’ for designedly withholding notice of accident from defenders within the meaning of section 2 of said Act.”

Argued for the appellants—(1) On the first question, the workman was barred from claiming compensation if there was delay in giving notice of the accident unless it was proved that the employer was not prejudiced through the delay, and the onus of proving this lay on the workman— Shearer v. Miller & Sons, November 17, 1899, 2 F. 114, 37 S.L.R. 80. In this case the onus was not discharged, and accordingly the claim for compensation did not lie. (2) On the second question, it was proved in this case that the pursuer delayed giving notice intentionally, and had continued to work although advised by his doctor to rest. The proviso in the second section of the Act applied to cases where the notice was defective in character, e.g., where it was verbal and not formal, but did not extend to cases such as the present, where notice was designedly withheld. The workman was bound to give notice as soon as practicable, and if there was delay in doing so, the question whether that delay was occasioned by mistake or reasonable cause fell to be determined on the facts of the case, and could not depend on the motive which influenced the workman in failing to comply with the statutory requirement. The “subjective standard” was no more applicable in this question than in the question as to what misconduct was “serious and wilful”— Dobson v. United Collieries, Limited, December 16, 1905, 8 F. 241, 43 S.L.R. 260. The words “mistake or other reasonable cause” were construed in Rankine v. Alloa Coal Company, Limited, February 16, 1904, 6 F. 375, 41 S.L.R. 306, but that case was distinguishable in that there the injured workman suffered at the time of the accident only from faintness and weakness and might therefore be excused for failing to appreciate the nature of his injury, where as in the present case the pursuer felt physical pain and must have realised that he had suffered a serious injury.

Page: 182↓

Counsel for the respondent were not called on.