United Kingdom House of Lords Decisions

Lord Chancellor (Buckmaster)—In this case counsel for the respondents have said all that is possible in support of the judgment of the Court of Appeal, with the conclusions of which I am quite unable to agree. The only question for decision here is whether or no the respondents were prejudiced by reason of the fact that a workman in their service did not give them notice of an accident that he had incurred in the course of and arising out of his employment as soon as practicable after the accident had happened.

I think it is desirable to state what the facts were that have given rise to this case in order to show why I think that the County Court Judge was right in holding that as the evidence stood no prejudice was suffered by lack of that notice. The applicants are the representatives of a dead man who was employed by the respondents as an ignition hand in their works of mechanical engineers. On the 7th April, while engaged in his work, he cut his thumb with either a piece of lead or a piece of wood, it is not quite clear which. The fact that he had injured himself was known that afternoon to the manager of the works, but neither the man nor the manager attributed any serious consequences to the injury, which appeared to be slight. The man continued at work up till the 4th May, the wound during that time having healed. On the 4th May he consulted a doctor, as his arm was then swelling and the glands had become affected. The doctor gave him a certificate that he was suffering from septic poisoning, and it appears that the man himself gave that certificate to his employers and then went to bed. It is not contended that up to the 4th May this man was under any obligation to serve notice upon his employers of the accident which had occurred, because it was not then believed to be of so serious a character as to give rise to any claim for compensation. But it is said, and said quite truly, that on the 4th May, when the true mischief was revealed, there was imposed upon him an obligation to serve notice as soon as practicable, calling his employers' attention to the fact of the injury, the date when it occurred, and all the necessary matters specified by the statute. That notice he omitted to send; but the omission to send the notice is not fatal to the proceedings for recovery of compensation if while the claim is being settled by the County Court Judge it appears that by want of such notice the employer was not prejudiced,

On the 9th May, after the man had gone to bed, his wife went down to the respondents' factory and an important interview took place. She had attempted to get payment from the National Insurance Society, who had repudiated their liability upon the ground that this was a case where the man had been injured in the course of his employment, and that the proper people to compensate him were his employers, such cases being outside the provisions of the National Insurance Act. She told the man whom she saw on that occasion—a Mr Slatter—that the National Insurance Society would not pay, for the reasons I have stated, and she at least made it plain to Mr Slatter that in those circumstances it was suggested that her husband was suffering from an illness which had occurred in the course of his employment. Mr Slatter obviously took that view, for he said that he would write to the insurance company about the matter, and I think there can be no doubt that the insurance company to whom he was going to write was the company with whom the respondents were insured against accidents, and he expressed regret that her husband was ill. She called again on the following Thursday, which was the 14th May, five days after the first interview, and she saw Slatter again, who told her they had not heard from the insurance company, and she was told to come again later on. On the 16th May, after these two interviews, a doctor came to visit and examine the injured man, who must have been sent either by the employers or by the insurance company; there was no other person who could have sent a doctor for that purpose; and indeed counsel for the respondents at the hearing of the case referred to this man as “our doctor.” He examined the man, and it is admitted that as from that day the employers had full knowledge of the accident and its results, and that no prejudice was suffered by omission to give notice after that date; therefore what is complained of is the delay that occurred between the 4th May and the 16th May. Proper notice was in fact given on the 29th May, after two more interviews between the man's wife and Mr Slatter, and the man died on the 31st of May from the results of the accident.

It is said the fact that between the 4th May and the 16th May the employers had not received notice is a fact which, without explanation, might reasonably be assumed to have caused prejudice to the employers. If that were the true conclusion to be drawn I should think the respondents' argument here was well justified. But upon the facts as found by the learned County Court Judge, fully supported by the evidence, there is nothing in my opinion to justify that inference, and I find it difficult to follow the reasoning by which the learned Judges in the Court of Appeal came to the conclusion that the applicants must fail. They appear to have been led to that result by assuming that there was cast upon the applicant the burden of discharging some definite onus of establishing the negative proposition that the respondents were not prejudiced. I cannot think that that is the true view of the statute. It is of course true that at the date of the decision of the Court of Appeal in this case they had not before them the decision of this House in the case of Hayward v. Westleigh Colliery Company, Limited, 1915 A.C. 540, 53 S.L.R. 513, which showed that such a view was erroneous.

In particular, I refer to the opinion of my noble and learned friend Lord Atkinson, which expressed all that I desire to say as

Page: 831↓