Nov. 27, Ellis v. Co., Limited. 1912. Argued for the pursuer ;-Section 2 (1) (a) provided that failure to give notice was excusable if caused by mistake; and such mistake was Fairfield Ship-an excuse even though prejudice had been suffered by the defenders. building and This part of the proviso had been disregarded by the Sheriff-substiEngineering tute in framing the first question, and apparently also in disposing of the case. Failure to give timeous notice here was clearly due to mistake, and to a mistake that was obviously a reasonable cause.1 The present case was a fortiori of Rankine v. Alloa Coal Company. Egerton v. Moore, founded on by the defenders, was distinguishable from the present case, in that the claimant in Egerton was not ignorant of his true condition. Argued for the defenders;-By section 2 of the Act notice of the accident was to be given before the workman voluntarily left his employment and notice of claim was to be given within six months of the date of the accident. Neither of the conditions had been fulfilled in this case. This case was ruled by Egerton v. Moore,3 and the cases relied on by the pursuer were distinguishable, because in them it was not possible, as it was possible in this case, that notice could have been given timeously. There was sufficient evidence before the arbitrator to entitle him to find as he did.4 LORD PRESIDENT.-William Ellis, a shipwright and an inmate of the Victoria Infirmary in Glasgow, sought to recover compensation from the Fairfield Shipbuilding and Engineering Company, Limited, Govan, in respect of an accident which he alleged happened to him, when he was in their employment, on 1st June 1911. The respondents in their answers to the application pled that notice of the accident had not been given as soon as practicable after the happening thereof, and also that a claim had not been made within six months of its occurrence. Seeing that plea, the learned Sheriff-substitute, as arbitrator, allowed the respondents a proof as to the alleged want of notice and claim, and to the applicant a conjunct probation, and did not allow a proof at this stage as to the general facts of the case. In so doing I think that the learned arbitrator adopted an inconvenient procedure-I do not say an incompetent, but an inconvenient procedure-a procedure which has more than once been said in this Court not to be, except in very exceptional circumstances, the proper procedure, with the result (as will be presently apparent) that the case has got into a more or less unfortunate position. On this point I may remind your Lordships of the remarks that were made by Lord Kinnear, with the approbation of the other Judges of this Division, in Rankine v. Alloa Coal Company, Limited.5 The learned arbitrator decided that proper notice had not been given, and that a claim had not been timeously made, and therefore dismissed the application. The workman, wishing to bring that judgment under review, 1 Rankine v. Alloa Coal Co., Limited, (1904) 6 F. 375; Brown v. Lochgelly Iron and Coal Co., Limited, 1907 S. C. 198; Millar v. Refuge Assurance Co., Limited, 1912 S. C. 37; Hoare v. Arding & Hobbs, (1911) 5 Butterworth's Compensation Cases, 36. 2 6 F. 375. 8 [1912] 2 K. B. 308. 4 O'Neill v. Motherwell, 1907 S. C. 1076. asked the arbitrator to state a case, and eventually, after a certain amount Nov. 27, 1912. of difference between the parties as to what form the case should take, the Ellis v. learned Sheriff-substitute did state a case which, although it was not at the Fairfield Shiptime accepted by the workman, has been accepted quite properly by his building and Engineering learned counsel to-day, and quite properly also by his opponent. We have Co., Limited. therefore had the argument upon the stated case as framed by the Sheriff- Ld. President. substitute, which, although not technically before us, is so of consent of parties. Now, taking the stated case as framed by the Sheriff-substitute, he first finds that it was alleged that the accident occurred on 1st June 1911. I do not think there can be any more obvious commentary upon the procedure adopted than this, that we have, for the purposes of argument, to assume that the accident happened without really knowing anything about the accident, and yet when it comes to the question whether there has been reasonable delay or not, it is quite evident that a good deal turns upon the fact of the accident and what happened afterwards. The learned Sheriffsubstitute then goes on to say "that no notice of the alleged accident was given, and no claim for compensation made, until 30th January 1912." Now that is a finding in fact, and indeed there is no dispute that no actual notice or claim was made until that date. He then makes this finding, "that it was practicable for the appellant to have given notice of the accident immediately after the happening thereof, and before he left the employment." It is perhaps difficult to say exactly how far that finding, standing by itself, goes. If it means that the man knew on the 1st June that something had happened to him, and that therefore he could have said so, it is really no more than a truism. If, on the other hand, it means more than that, then, upon the face of it, it is perfectly impossible to discover how much more it does mean. The learned Sheriff-substitute then goes on to enumerate certain other facts which he finds established, but he first interpolates this finding in law, "that these proceedings were not maintainable unless it should be proved (a) that the respondents were not prejudiced by the want of timeous notice, and (b) that the appellant's failure to make a claim within six months was occasioned by mistake, absence from the United Kingdom, or other reasonable cause." I do not think that the Sheriff-substitute there is really wrong, but he has certainly made a slip. He has left out something that he ought to have put in, because he means to echo what the statute says. Now what the statute says in section 2 is this: "Proceedings 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," and then there follows a double proviso, one branch applying to each of the two requisites I have mentioned. And so far as the requisite of notice is concerned, the want of notice is not to have any effect if it is found in the proceedings that the want of notice did not prejudice the employer. That is mentioned by the learned Sheriff-substitute. But then the same branch of the proviso goes Ellis v. Nov. 27, 1912. on to say, "or that such want was occasioned by mistake, absence from the United Kingdom, or other reasonable cause," and that he Fairfield Ship-leaves out. building and Engineering Ld. President. The Sheriff-substitute then proceeds, as I have said, to make certain other Co., Limited. findings, and first of all he finds that it was not proved that the respondents were not prejudiced by the appellant's failure to give timeous notice, but that in fact they were, inasmuch as they were deprived of the opportunity of having him medically examined. Then he gives us what really are the material facts upon which I think we can dispose of the case. He finds "that from the date of the alleged accident up to 5th August 1911 the appellant suffered pain in his neck and shoulder which he himself attributed to the result of the accident; that on 5th August 1911 he consulted a doctor, who diagnosed his disease as, and treated him for, muscular rheumatism of the right shoulder"; that up to 11th November 1911 he remained in his employment, but that he left on the 11th November; "that the appellant was thereafter treated by a doctor for a severe strain of the neck "—that is much the same as muscular rheumatism-"up to 13th December 1911," when he consulted another doctor, who informed him that his head was partially dislocated from the spine, and recommended his removal to the infirmary for treatment; that he was removed on 20th December 1911; and that afterwards, sometime in January 1912, he intimated for the first time that he "claimed compensation in respect that his then condition was attributable to the alleged accident on 1st June 1911." He does not actually say, but I think it is obvious, that the appellant, in the infirmary, after the 1st January, was suffering from a condition which, in his own opinion at least, and in the opinion of his advisers, was consequent upon the state of matters which had been diagnosed by the last doctor on the 13th December, namely, partial dislocation of the head from the spine. He further finds that a formal claim was made upon 30th January 1912. The learned Sheriff-substitute then proceeds to say: "I found further in fact that, although the appellant may have been under a mistake as to his symptoms and condition between 5th August 1911 and 13th December 1911, he was under no mistake but himself attributed his condition to the result of the alleged accident from the date thereof until 5th August 1911, and from 13th December 1911 to 30th January 1912." With regard to this last finding I cannot help saying that it seems to me that there is a play upon the word "condition." In view of the facts that the learned Sheriff-substitute has just found, it is clear that in one sense this man was aware of his condition from the date of the accident until 5th August 1911, that is to say, he knew that he had had an accident and that his shoulder was sore; but if "condition" means true condition, he, upon the facts, is found to know nothing about it, because he was suffering from something he did not know anything about-dislocation of the head-until he was told on the subsequent 13th December. It is true, I think, that from the 13th December until January he did know from what he was suffering, for he had been told by the doctor on the 13th December; and afterwards, when he got into the infirmary, it is probable-though the learned Sheriff-substitute does not tell us so that the infirmary doctor then told him that his condition was serious and that it bore out the diagnosis Nov. 27, 1912. of the 13th December. The learned Sheriff-substitute then says this: "I Ellis v. therefore found in fact and law that the failure to make a claim within the Fairfield Shipbuilding and statutory period was not occasioned by mistake or other reasonable cause, Engineering dismissed the application, and found the respondents entitled to expenses." Co., Limited. He had previously found in fact that it was not proved that the respondents Ld. President. were not prejudiced by the want of timeous notice, but he had made no finding at all as to whether such want of notice was or was not occasioned by mistake, absence, or other reasonable cause. I am of opinion, and I must say very clearly, upon the facts as found, that the learned Sheriff-substitute's finding cannot be supported. There is ample authority upon this matter. There is first of all the case of Rankine 5 v. Alloa Coal Company, which was followed in this Court by the case of Brown v. Lochgelly Iron and Coal Company, Limited,2 and by the cases of Hoare v. Arding & Hobbs,3 and Moore v. Naval Coal Company,* in the Court of Appeal in England, and, finally, by the case of Egerton v. Moore,5 to which I shall refer more particularly later on. Now, the result of the cases which I have mentioned, other than Egerton v. Moore, seems to me to affirm this proposition perfectly clearly-that a man may have an accident, and honestly believe at the time that nothing serious has happened to him, and therefore, not conceiving that he has a good claim against his employer, make no claim, but if it afterwards turns out that he has made a mistake in fact and really has been injured, that may be (I do not say must always be, because the question of time might enter into it) reasonable cause for his not making the claim within the six months, or not giving notice of the accident before he left the employment; or, if one likes to use the other words, that his failure to give notice or make a claim in such circumstances may be occasioned by a mistake, in the sense of the statute, for I think the words "mistake, absence from the United Kingdom, or other reasonable cause" are really exegetical of each other-that is to say, reasonable cause is ejusdem generis with mistake. I think, further, that in this case the whole facts point clearly the one way. Not only did the man himself not think at the time that he was much injured, but on going to the doctor for skilled advice, he was told, "You are suffering from muscular rheumatism." Well, muscular rheumatism may sometimes be occasioned by an accident. In the strict sense of the word it is not so caused, because a blow cannot directly occasion rheumatism. In fact, to borrow the words of Lord Justice Fletcher Moulton in Egerton v. Moore (he is talking of a tubercular abscess, but, mutatis mutandis, the same language may be applied to a case of rheumatism being caused by a blow),—"The medical evidence showed that the abscess might have come from other causes, although it most probably came from this blow, but it must be remembered that the ultimate mischief was only an indirect consequence of the blow. The blow would not produce the tubercular abscess, but, like any other lesion of the tissues, it might produce a state of things which would cause the tubercular tendency which was in the 16 F. 375. 2 1907 S. C. 198. 35 Butterworth's C. C. 36. 5 [1912] 2 K. B. 308. 45 Butterworth's C. C. 87. Ld. President. Nov. 27, 1912. man's system to show itself there. Other lesions might have caused it to Ellis v. show itself elsewhere." Substituting rheumatism for tubercular abscess, Fairfield Ship- that is exactly in point in this case. This workman is told by his doctor: building and "You have only got muscular rheumatism, and that is a thing which will Engineering Co., Limited. pass off." He does not think it is anything very serious, he does not make a claim, and he goes on in that state of ignorance until nearly the end of December, when he gets much worse, and then he goes to another doctor, who makes, I suppose, a more careful examination and finds out that he has sustained a very serious injury. I agree that after that the man might have given notice. But then, as I think was said by one of the learned Judges in this Division, "We are not to measure this question of notice in very nice scales"; and I think the trouble occasioned to this man by his removal to the infirmary and his being laid up there, are all reasonable causes for a little longer delay in giving of the notice. I therefore think that there is only one conclusion to be reached upon these facts, viz., that there was here a reasonable cause for the man not giving notice of the accident. Now, I come again to what I think shows the inconvenience of the procedure which was adopted here. In all that I have said I have been bound to assume that it could be clearly proved that the man's present condition, following upon the partial dislocation of his head from his spine, was really the result of the accident, an accident of which we do not know the details. It is quite clear that this workman is not entitled to get anything unless he proves that his present condition is due to the accident, and that he will still have to prove in the proceedings before the Sheriff-substitute; and it would have been much more satisfactory if one had not had to give a decision upon the question of reasonable cause upon an assumed state of facts. But, on the other hand, I do not think it would be justice to the workman not to give a decision upon the assumed state of facts, because, if the facts are as assumed, then undoubtedly I think there was here reasonable cause in the sense of the statute. 2 I said that I would refer specially to Egerton v. Moore.1 Egerton v. Moore1 was relied on by the learned counsel for the employers here, because in it there are certain criticisms upon Lord Adam's judgment in Rankine v. Alloa Coal Company. I am satisfied that there is nothing in Egerton v. Moore 1 which is at all inconsistent with the judgment in Rankine v. Alloa Coal Company, or with what was said in that case by Lord M'Laren and Lord Kinnear, or, indeed, with what was said by Lord Adam, except in one portion of his judgment, where-with great respect for all Lord Adam says-I agree with the English Judges in thinking that he went beyond the neces sities of the case and seemed to lay down some general propositions which go too far. As it is well put by Lord Justice Buckley: "There are expressions in the judgment of Lord Adam in Rankine v. Alloa Coal Company? which might be used to sustain an argument that the two expressions 'to make a mistake' and 'to take a wrong course' are equivalent expressions." But nothing could be clearer than Lord Justice Buckley's opinion itself to the effect that Rankine v. Alloa Coal Company 2 was well decided, because, |