Scottish Court of Session Decisions

This was a stated case in an arbitration under the Workmen's Compensation Act 1897, in which the appellant Duncan M'Lean had claimed damages in respect of an injury sustained by him while in the service of the respondents Messrs Carse & Holmes, shipwrights, Glasgow.

The following was the case as stated by the Sheriff-Substitute ( Spens):—“This is an arbitration under the The Workmen's Compensation Act 1897, before the Sheriff of Lanarkshire at Glasgow, in which the Sheriff is asked to grant a decree against the respondents ordaining them to pay to the appellant the sum of 15s. weekly, beginning the first weekly payment on 19th November 1898, and to find them liable in expenses, in respect that, as alleged by the appellant, while he was in the employment of the respondents at work on the 4th November 1898 on board a vessel called ‘The City of Bombay,’ then lying in the Govan Dock, and while engaged screwing up a bolt, the screw key suddenly slipped, causing his right arm to strike violently against the ‘knee’ which is used for boring purposes. In consequence of said accident the appellant alleged that his right elbow had been very badly hurt and the bone affected. It is also alleged on the part of the appellant that he had been medically attended, that he is unable to earn any wages, and that it is not known when he would be able to resume his ordinary occupation.

The appellant averred that while in the employment of the respondents he earned wages at the rate of 30s. per week.

The application was heard before me on the 17th January 1899, when the following facts emerged from the statements and admissions made:—1. That the appellant was at work on the vessel referred to on the 2nd, 3rd, 4th, and 5th November 1898, and on the latter date, which was a Saturday, he was paid his wages up to date. 2. That on Monday the 7th November he returned to his work and completed his job at 2.30 p.m., and was paid for that day's work the same day, and on that date admittedly ceased to be in respondents' employment. 3. That although the appellant now alleges that he met with an accident to his elbow on Friday the 4th November, while in the respondents' employment, he gave no intimation of any kind of the alleged accident until the 28th November, fully three weeks after it is said to have taken place, and did not give notice under the Act until some days after the last-mentioned date. 4. The appellant was present and gave no satisfactory explanation in answer to me as to his reason for not reporting the accident. He further stated to me that, though not properly fit to work after the accident, he nevertheless drew his full pay.

In these circumstances I dismissed the claim, and found the appellant liable in £1, 1s. of expenses, and I was of opinion that under section 2 of the Act it is imperative that the workman should give notice before he leaves his employment, unless there is some reasonable explanation why notice was not given, and no such explanation was offered in this case. I was further of opinion that, after such a lapse of time, with regard to such accident as is here founded on, the employer is necessarily prejudiced by not being able to obtain the information which would have been available to him had he been advised of the accident at the time of its occurrence. I was further of opinion that to entertain such a case would be to hold out a premium to all sorts of mala fide and fictitious claims under the Act.

The following is the question of law submitted for the opinion of the Court:—Whether the appellant's allegation that he had been injured in the employment of the respondents should be entertained (1) where the alleged injury happened three days before the completion of the employment; (2) where the employment was left without intimation of the alleged accident, and no intimation thereof given till three weeks thereafter; and (3) no satisfactory explanation given of the reason for concealment of the alleged accident, such concealment preventing respondents making inquiry into the bona fides of the claim at or about the alleged date of accident.”

By section 2 (1) of the Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37) 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.”