Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 2, enacts—“(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.… Provided always that ( a) the want of … 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 … were then given and the hearing postponed, be prejudiced in his defence by the want, … or that such want … was occasioned by mistake … or other reasonable cause.…”

In an arbitration under the Workmen's Compensation Act 1906 between James Livingstone, drawer, Cleland, appellant, and the Summerlee Iron Company, Limited, respondents, the Sheriff-Substitute ( Macdiarmid) refused compensation, and at the request of the claimant stated a Case for appeal.

The facts as stated by the Sheriff-Substitute were as follows—“1. That on 22nd December 1920 the pursuer and appellant was injured by accident arising out of and in the course of his employment with the defenders and respondents by being struck on the left side of the abdomen by the buffer of an empty hutch with which a runaway hutch had collided. 2. That he was totally incapacitated. 3. That his average weekly earnings were £4, 10s. 4. That he worked on until the pit closed for the New Year holidays on 31st December 1920. 5. That while working from said 22nd to 31st December 1920 he suffered pain;

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that he was aware of a swelling on his left side, which increased in size and became harder as the days passed, and that he had to be assisted in his work. 6. That on or about 3rd January 1921 he had to take to his bed, and that on or about 20th January 1921 he was operated upon and an abscess at the site of the pain of which he complained, and involving the abdominal wall, was opened and drained. 7. That notice of said accident was given on his behalf to the defenders and respondents on 11th January 1921. 8. That said notice was not given as soon as practicable after the happening of the said accident. 9. That the defenders and respondents were prejudiced in their defence by the said want of notice in respect that their medical men were unable to see the pursuer and appellant, while evidence of his having sustained a blow from the said hutch might have been present. 10. That from the date of said accident the pursuer and appellant was aware that he had sustained injury which was so serious as to prevent him doing his full amount of work, and that he worked on to the holidays in the hope that the rest he then should have might result in an alteration for the better in his condition.”

The Case further stated—“In these circumstances I found that said want of notice was not due to mistake or other reasonable cause, and accordingly refused the prayer of the petition and dismissed the same. I found the pursuer and appellant liable to the defenders and respondents in expenses.”

The question of law for the opinion of the Court was—“In the circumstances stated was I entitled to find that the failure of the pursuer and appellant to give timeous notice was not occasioned by mistake or other reasonable cause?”

Argued for the appellant—The delay in giving formal notice of the accident and consequent prejudice to the employers was due to mistake or other reasonable cause on the part of the appellant, The workman in the present case did not appreciate at the time that his injury was as serious as it eventually turned out to be. In the circumstances it was reasonable for him to continue at his work for the few remaining days until the pit closed for the New Year holidays in the hope that the rest they would afford him would restore him to health. The delay in giving notice was very short in the present case, and shorter than in the following cases, which were all decided in favour of the workman— Rankine v. Alloa Coal Company, Limited, 1904, 6 F. 375, 41 S.L.R. 306; Brown v. Lochgelly Iron and, Coal Company, Limited, 1907 S.C. 198, 44 S.L.R. 180; Ellis v. The Fairfield Shipbuilding Company, Limited, 1913 S.C. 217, 50 S.L.R. 137; Flood v. Smith, 1915 S.C. 726, 52 S.L.R. 471; Millar v. Refuge Assurance Company, Limited, 1912 S.C. 37, 49 S.L.R. 67. There was no real divergence between these authorities and the English cases on this point. The fact that the workman abstained from making a claim until he realised that his injuries were serious was a reasonable cause for the delay in giving notice— Ellis ( cit. sup.), per Lord President Dunedin at p. 224, and Lord Kinnear at p. 225, and Flood ( cit. sup.), per Lord President Strathclyde at p. 731, and Lord Mackenzie at p. 733. Counsel also referred to Snelling v. Norton Hill Colliery Company, Limited, (1913), 6 B.W.C.C. 506; Clapp v. Carter, (1914), 7 B.W.C.C. 28; Potter v. Welch & Sons, Limited, (1914), 7 B.W.C.C. 738; Lingley v. Frith & Sons, Limited, (1921), 1 K.B. 655; Egerton v. Moore, (1912), 2 K.B. 308; Webster v. Cohen Brothers, (1913), 6 B.W.C.C. 92.

Argued for the respondents—The arbitrator was justified in finding that the delay in giving notice of the accident was not occasioned by mistake or other reasonable cause. The workman had six months within which he might consider whether to lodge a claim for compensation or not, but unless his injury was of a trivial nature there was a duty upon him to give notice of any accident that might overtake him to his employers at once. He was not entitled to delay doing so in the hope that his injury might turn out to be a trifling one and that he might get better soon. The period that might elapse between sustaining an injury and giving notice might in different circumstances vary from a few hours to several months, but in the present case there was no excuse for delay in giving notice as the injury was apparent and considerable. Counsel cited the following cases— Egerton ( cit. sup.); Webster ( cit. sup.); Snelling ( cit. sup.); Clapp ( cit. sup.); Potter ( cit. sup); Lingley ( cit. sup.); Wassell v. Russell & Sons, (1915), 8 B.W.C.C. 230.