Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) enacts—Section 2 (1)—“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.… Provided always that ( a) 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, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in his defence by the want, defect, or inaccuracy, or that such want, defect, or inaccuracy was occasioned by mistake, absence from the United Kingdom, or other reasonable cause. …”

In an arbitration under the Workmen's Compensation Act 1906 in the Sheriff Court at Dunfermline between Mrs Mary Hepburn or Kirk, widow of David Kirk, miner, Lochgelly, respondent, and the Lochgelly Iron and Coal Company, Limited, Lochgelly, appellants, the Sherifif-Substitute ( UmpherSton) sitting as arbiter found the company liable for compensation, and at their request stated a Case for appeal.

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The Case stated—“This is an arbitration in an application for an award of compensation under the Workmen's Compensation Act 1906 by the respondent in respect of the death of her husband David Kirk, miner, who resided at 2 Dundas Street, Lochgelly, on 28th December 1914, by heart failure from heart strain as a result of injury by accident arising out of and in the course of his employment with the appellants at their Mary Pit, Lochgelly, on said date. In her application the respondent claimed to be awarded the sum of £300, or such other sum as the Court might fix. The claim was resisted by the appellants on the following grounds, viz., that the said David Kirk's death did not result from personal injury by accident arising out of and in the course of his employment; that notice of accident was not given to them as soon as practicable after the happening thereof, and they were prejudiced in their defence by the want of notice; and that the deceased's earnings in the employment of the appellants during the three years next preceding said alleged injury amounted, in the sense of the Workmen's Compensation Act 1906, to £260, 15s. 6d.

Proof was heard before me, sitting with the medical assessor, on 16th June 1915, and on 19th June 1915 I found the following facts admitted or proved:—(1) The appellants are coalowners carrying on business at, inter alia, the Mary Pit, Lochgelly. On 28th December 1914 the late David Kirk was a miner in their employment at said pit. The claimant and respondent is the widow of the said David Kirk. She was wholly dependent on him at the time of his death. (2) The late David Kirk was a big man, about 5 feet 9 inches in height, a steady and able workman, and except for slight attacks of neuralgia had not suffered in any way from ill-health. He was 62 years of age at his death. He was in the habit of taking a day off each week; there was an idle Saturday every alternate week at the pit; but in addition to that David Kirk stayed at home on the Wednesday of the week when there was no idle day, and he gave as his reason that he was feeling tired. Apart from these idle days he was able for his work and did it efficiently. (3) On 28th December 1914 David Kirk went to his work as usual in apparent good health, and worked at his ordinary work as a miner from 6 a.m. until the usual breakfast time, about 9 a.m. About that time a haulage rope on a brae near his working-place broke, and an empty hutch stopped about 15 yards from the top of the brae, the gradient of which was 1 in 3. (4) Shortly before 10 o'clock David Kirk, who appeared to be in his usual health, along with his drawer Wilson and other two men, proceeded to pull the empty hutch to the top of the brae by means of the steel haulage rope, the two others pulling directly upwards on the rope and Kirk and Wilson pulling downwards on the rope, which was passed round a pulley at the top of the brae. This work was within the scope of their employment. The method adopted was when all were ready for the four to pull simultaneously in successive ‘heaves’ The operation lasted 10 or 15 minutes. Owing to the low roof (the height being from 4 feet to 4 feet 6 inches) the men were necessarily standing in a crouching position, and the work was hard. When the hutch reached the top of the brae Kirk complained to Wilson of the stiffness of the pull, and Wilson advised him to sit down and smoke his pipe. Wilson and the other men then left the place. (5) In about five or seven minutes Wilson returned. He found Kirk in a position indicating that he had sat down and then fallen over. He was only semiconscious, and was breathing heavily. Wilson also noticed that two 6-feet rails had been laid in position, which was the work of a minute, and he presumed that this had been done by Kirk. Assistance was obtained, brandy was administered to Kirk, which slightly revived him, and he was conveyed to the pithead, where he was examined by a doctor and spoke for the first time, being able to tell the doctor his name. The doctor diagnosed that he was suffering from heart failure. Kirk was then taken home and put to bed, where his consciousness improved and he was able to speak, complaining of cold feet and pain in the back. (6) Kirk died about 4 p.m. on said 28th December, the cause of death being heart failure caused by heart strain. (7) On the evening of said 28th December a local delegate of the Miners' Union (of which Kirk was a member) called on the respondent, and in the course of conversation asked her if she wished the Union to attend to the matter of compensation. The respondent agreed to this and left the matter in his hands. At that time the respondent believed that her husband's death was due to injury by accident sustained in the pit, and that she was entitled to compensation. She had no reason to think that that claim would be questioned. (8) Nothing was done by the Union officials until after the New Year holidays. On 6th January 1915, prior to which date the remains of deceased had been interred, one of the secretaries of the Union wrote a letter to the manager and solicitor of the Fife branch of the Mine Owners' Defence Association, with whom the appellants were believed by him to be insured, and who was agent for the appellants in the present arbitration. In doing so the Miners' Union secretary acted according to the custom of the officials of the Miners' Union in cases of fatal accidents occurring in the appellants' pits. The letter was in the following terms:—‘ 6th Jany. 1915. John M. Davidson, Esq., 17 Maygate, Dunfermline. Dear Sir— David Kirk v. Lochgelly Coal Co.—This man was injured in the Mary Pit, Lochgelly, on the 28th ulto., and died on the same date. Kindly let me know what compensation you are prepared to pay.—Yours truly, James Robertson.’ (9) The said letter was received in course of post by the branch manager of the Mine Owners' Defence Association, who thereupon communicated with the appellants, and they made such investigation as they considered necessary. Prior to receipt of this letter appellants

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had no knowledge of an accident having occurred to Kirk, although some of the officials of the pit knew that Kirk had turned ill in the pit and had died the same day. No application was made for exhumation of Kirk's body in order that a post-mortem examination might be obtained. Apart from such examination all information necessary for the defence could then be obtained. (10) If a postmortem examination had been made after receipt of said letter, it is probable that the condition of David Kirk's heart at the time of his death would have been sufficiently ascertained to determine definitely whether death was due to a heart condition; it could have been ascertained without doubt whether death was due to cerebral hæmorrhage, which the appellants maintained in the arbitration was the cause of death.

On the above facts I held; after having consulted with the medical assessor, that on 28th December 1914 David Kirk sustained personal injury by accident arising out of and in the course of his employment with the appellants, viz., a strain to the heart due to excessive exertion while pulling on the rope as above mentioned; that death resulted therefrom; that the respondent was wholly dependent on the said David Kirk at the time of his death; and that the respondent was not barred from maintaining proceedings for recovery of compensation on the ground that she had not given notice of the accident as soon as practicable. I also held that the appellants were not prejudiced by want of notice. I awarded £261, 4s. 2d. as compensation, being a sum agreed on by the parties.

If I had held on the evidence that the death of the said David Kirk was due to cerebral hæmorrhage, I should have required to consider whether the death resulted from a strain, on which question there was evidence, but I did not consider it.”

The questions of law for the opinion of the Court were—“1. Was there evidence upon which it could competently be found that the deceased David Kirk's death resulted from personal injury by accident arising out of and in the course of his employment with the appellants? 2. Was there evidence upon which it could competently be found that the respondent was not barred from maintaining the present proceedings?”

Note.—.. I am not aware that these words [‘as soon as practicable’] have been the subject of judicial interpretation, although in the weekly increasing number of decisions under the Act I hesitate to say there are not at least dicta on the subject. But I venture to express what they convey to my uninstructed mind. I think they mean that a person who intends to claim compensation must give notice to the employers of the incident on which that claim is to be founded; and that he must do so at such a time as a reasonable person would give it who has a belief in his ground of claim, is acting in bona fide, and has no desire to conceal anything from the employers. Now I put to myself this question—If the claimant had given the statutory notice on 6th January, would that notice be ‘as soon as practicable’? I think that in the circumstances it would. Her husband died on the same day as he received his injury, viz., 28th December. Her first thoughts would naturally be taken up with the arrangements for the funeral and other things consequent on the tragic occurrence. The New Year holidays began on the last day of the year. She understood that the cause of her husband's death was a strain in the pit on the day of his death. She had no reason for suspecting that anyone might have a different opinion. If she gave notice within a few days of people returning to business after the holidays it seems to me that she would be fulfilling the conditions which I have stated in explaining the meaning of the words ‘as soon as practicable.’

“Assuming, however, that what I have said is not in accordance with what may be laid down by courts of appeal as the correct interpretation of these words, it is necessary to consider whether the exceptions in the proviso to the section with regard to notice apply. I think there was ‘reasonable cause’ for not giving earlier notice, and that that ‘reasonable cause’ is to be found in the facts set forth in the immediately preceding paragraph. I think, further, that the respondents have suffered no prejudice through the failure to give earlier notice. It was admitted that after the letter of 6th January they could have taken steps for the exhumation of Kirk's body in order to obtain a post-mortem examination. They did not do so. If they had done that it was proved that it was at least probable that the condition of Kirk's heart at the time of his death could have been sufficiently ascertained to determine whether death was due to a heart condition. But if this could not be ascertained in such a manner as to be wholly satisfactory, they could have ascertained whether his death was due to cerebral hæmorrhage. Dr Comrie's view was that the illness might have been caused by a slight haemorrhage into a portion of the brain which would not produce paralysis or loss of speech, such as the pons or medulla oblongata; and he said that a post-mortem examination after 6th January might not have disclosed a slight hæmorrhage, although it would undoubtedly have shown signs of any considerable hæmorrhage. But when the medical assessor put to him the history of the case in the later stages he admitted that they were consistent only with the occurrence of a large haemorrhage, lasting perhaps for half-an-hour, which would break down the partitions between the ventricles and other parts of the brain, thus causing death. In view of the earlier portions of the evidence it seems clear that the occurrence of any such haemorrhage would have been ascertainable on a postmortem examination after a notice on 6th January. The evidence therefore compels me to conclude that any delay there may have been in giving notice has not caused prejudice to the respondents in the matter of this claim.”

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Argued for the appellants—The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) required notice to be given as “soon as practicable.” This was a question of circumstances. When death had resulted from the injury notice ought to be given immediately unless there was reasonable cause for delay, and there was no finding to that effect in the present case— Snelling v. Norton Hill Colliery Company, Limited, 1913, 6 B. W.C.C. 239; Wassell v. Russell & Sons, 1915, 8 B.W.C.C. 230, per Phillimore, L.J., at p. 234; Burrell v. Holloway Brothers (London), Limited, 1911, 4 B.W.C.C. 239; Griffiths v. Atkinson, 1912, 5 B. W.C.C. 345; Webster v. Cohen Brothers, 1913, 6 B. W.C.C. 92; Egerton v. Moore, [1912] 2 K B 308; Park v. Coltness Iron Company, Limited, 1913 S.C. 1163, 50 S.L.R. 926, 6 B. W.C.C. 892; Ellis v. Fairfield Shipbuilding and Engineering Company, Limited, 1913 S.C. 217, 50 S.L.R. 137; Connolly v. Young's Paraffin Light and Mineral Oil Company, Limited, 1894, 22 R. 80, 32 S.L.R. 61; Grime v. Fletcher, 1915, 8 B.W.C.C. 69. The onus was on the workman to show that the employer had suffered no prejudice— Shearer v. Miller & Sons, 1899, 2 F. 114, 37 S.L.R. 80; Hayward v. Westleigh Colliery Company, Limited, [1915] A.C. 540; Nicholls v. Briton Ferry U.D.C., 1915, 8 B.W.C.C. 42; Eydmann v. Premier Accumulator Company, 1915, 8 B.W.C.C. 121. The defenders had suffered prejudice, because they had lost their opportunity for a post-mortem examination of the body before interment so as to enable them to ascertain the real cause of death, and after interment it was too late for them to do anything. Exhumation would not be allowed merely to get evidence in a compensation claim, especially if the situation requiring it arose from failure to do what the Act enjoined. Counsel referred on the power of the Sheriff to grant an exhumation order to Mitchell, 1893, 20 R. 902, 30 S.L.R. 801.

Argued for the respondent—The phrase “as soon as practicable” had received a fair and reasonable definition from the arbiter. It meant something between “as soon as possible” and “as soon as convenient”— Smith v. Leishman & Flood, 1915, 52 S.L.R. 471. In matters of notice under the Act the Court would not act strictly— Ellis v. Fairfield Shipbuilding and Engineering Company, Limited ( cit. sup.); Eaton v. Evans, 1911, 5 B. W.C.C. 82; Hoare v. Arding&Hobbs, 1911, 5 B. W.C.C. 36. The defenders had suffered no prejudice. If they disputed the medical certificate they should have asked for an exhumation order, and there was no evidence that the relatives would have objected.