d. To whom notice may be given.

It is not necessary that notice be given to the employer personally.49 But an employee who merely measures up the work given out and calculates the time allowed is not a proper person to whom notice could be given of the accident,50 nor is the foreman of a department of a large factory.51

e. Claim for compensation.

This phrase means, not the initiation of proceedings before the tribunal by which the compensation is to be assessed, but a notice of a claim for compensation, sent to the workman's employer.52 The claim need not be for a definite sum,53 merely because the injury is not accurately described from a medical point of view. Sidney v. Collins (1910) 3 B. W. C. C. (Eng.) 433.

49 Where the overman of a level writes down the facts of the injury to a boy in a mine in the presence of the boy and his father, it is a sufficient notice. Stevens v. Insoles [1912] 1 K. B. (Eng.) 36, [1911] W. N. 205, 81 L. J. K. B. N. S. 47, 105 L. T. N. S. 617.

Notice of the accident to the cashier of the employer, whose duty it was to find a substitute for the workman and to determine the amount he should be paid, is notice to the company. Butt v. Gellyceidrim Colliery Co. (1909) 3 B. W. C. C. (Eng.)

44.

50 Jackson v. Vickers [1912] W. C. Rep. (Eng.) 274, 5 B. W. C. C. 432.

51 Pimm v. Clement Talbot [1914] 7 B. W. C. C. (Eng.) 565; Plumley v. Ewart & Son (1915) 8 B. W. C. C. (Eng.) 464. 52 Powell v. Main Colliery Co. [1900] A. C. (Eng.) 366, 69 L. J. Q. B. N. S. 758, 49 Week. Rep. 49, 83 L. T. N. S. 85, 16 Times L. R. 466, 65 J. P. 100, holding that the proceedings were in time where a workman sent to his employers, within six months, a notice of the accident, and also a notice stating that he claimed a certain amount as compensation for the injury, and then, more than six months after the accident, filed a request for arbitration in the county court. The decision of the court of appeal ([1900] 2 Q. B. (Eng.) 145, 69 L. J. Q. B. N. S. 542, 64 J. P. 323, 48 Week. Rep. 534, 82 L. T. N. S. 340, 16 Times L. R. 282) was reversed.

A letter was written by the agent of a deceased servant's father to the employer to the following effect: "I am instructed by his father to intimate that he holds you liable for compensation. This notice is given in terms of the statute." Held, that the letter was not a claim for compensation, but merely notice of an intention to make a claim. Bennett v. Wordie (1899) 1 Sc. Sess. Cas. 5th series, 855, 36 Scot. L. R. 643, 7 Scot. L. T. 10.

55

nor in writing.54 But the fact that the wife of an injured workman asked the employer if he would compensate her and her children is not sufficient as a claim for compensation.5 A request for arbitration is a sufficient "claim for compensation." 56 And a letter containing a notice of the accident and a description of the injuries, and a request to know what compensation would be allowed, and a further request for an immediate answer, is a claim for compensation.5 So, a document wherein a workman made a claim for compensation for an injury received upon a designated day, "as per claim in the employers' liability act" is a valid claim.58 And a statement in an answer to an application for compensation that, with

57

53 Thompson v. Goold [1910] A. C. (Eng.) 409, 79 L. J. K. B. N. S. 905, 103 L. T. N. S. 81, 26 Times L. R. 526, 54 Sol. Jo. 599, 3 B. W. C. C. 392, overruling former authorities and dicta to the contrary. Το the same effect: Fraser v. Great North of Scotland R. Co. (1901) 3 F. 908, 38 Scot. L. R. 653, 9 Scot. L. T. 96; Allen v. Hoey (1914) 49 Ir. Law Times, 39, 8 B. W. C. Č. 424.

Among the cases that are to be considered as overruled are the following: Marno V. Workman (1899) 33 Ir. Law Times, 183, as cited in Allen v. Hoey (Ir.) supra; Kilpatrick v. Wemyss Coal Co. [1906-07] S. C. (Scot.) 320: Maver v. Park (1905) 8 Sc. Sess. Cas. 5th series (Scot.) 250; Bennett v. Wordie (1899) 1 F. 855, 36 Scot. L. R. 643, 7 Scot. L. T. 10; Powell v. Main Colliery Co. [1900] A. C. (Eng.) 366, 69 L. J. Q. B. N. S. 758, 49 Week. Rep. 49, 83 L. T. N. S. 85, 16 Times L. R. 466, 65 J. P. 100 (dieta).

54 Lowe v. Myers [1906] 2 K. B. (Eng.) 265, 75 L. J. K. B. N. S. 651, 95 L. T. N. S. 35, 22 Times L. R. 614. See also Thompson v. Goold (Eng.) supra.

Devons

A formal claim is unnecessary. v. Anderson [1911] S. C. 181, 48 Scot. L. R. 187, 4 B. W. C. C. 354.

55 Johnson v. Wootton (1911) 27 Times L. R. (Eng.) 487, 4 B. W. C. C. 258.

56 Wright v. Bagnall [1900] 2 Q. B. (Eng.) 240, 82 L. T. N. S. 346, 69 L. J. Q. B. Ñ. S. 551, 64 J. P. 420, 48 Week. Rep. 533, 16 Times L. R. 327; Fraser v. Great North of Scotland R. Co. (1901) 3 Sc. Sess. Cas. 5th series, 908, 38 Scot. L. R. 653, 9 Scot. L. T. 96.

But a request on the part of an agent for the insurance company which has insured the employer, to accept compensation, does not do away with the necessity of filing a claim. Devons v. Anderson [1911] S. C. 181, 48 Scot. L. R. 187, 4 B. W. C. C. 354.

57 Trenear v. Wells (1900; C. C.) 3 W. C. C. (Eng.) 58.

58 Linklater v. Webster (1904) 6 W. C. C. (Eng.) 50.

tain sum, which had been accepted in

fense."

59

A trial judge is in error if he dismisses the proceeding, when he has deter

made.

The six months are to be reckoned from day to day without reference to the particular moment of the day at which the injury occurs or the notice is given.60 A person partially dependent may await an award to one wholly dependent before filing his claim for a share in the award, although the time for |

59 Lowe v. Myers [1906] 2 K. B. (Eng.) 265, 75 L. J. K. B. N. S. 651, 95 L. T. N. S. 35, 22 Times L. R. 614.

60 Where the accident occurred at 11:30 A. M. on November 24th, 1908, a claim for compensation lodged at 5:30 P. M. on May 24th, 1909, is within six months from the Occurrence of the accident. Peggie V. Wemyss Coal Co. [1909-10] S. C. 93, 47 Scot. L. R. 149 (contention was that claim was not "timeous," because it was not put in until a later hour of the day on which the six months expired).

61 Smith v. Pearson (1909; C. C.) 2 B. W. C. C. (Eng.) 468.

62 McLean v. Carse (1899) 1 Sc. Sess. Cas. 5th series, 878, 36 Scot. L. R. 678, 7 Scot. L. T. 26.

63 Where a lad working in a colliery scratched his hand, but paid no attention to it, and worked two days afterward, when it became worse, and his mother poulticed it, and he worked another day, after which he saw the company's physician and was ordered by him to stop work, and written notice was not given to the company for two weeks thereafter, the county court judge may find that the employers were prejudiced because of the failure to give the notice, where the doctor gave evidence that working after the injury did the hand considerable harm. Snelling v. Norton Hill Colliery Co. [1913] W. C. & Ins. Rep. (Eng.) 497, 109 L. T. N. S. 81, 6 B. W. C. C. 506. Cozens-Hardy, M. R., stated that the lad was not to be blamed for not pay ing attention at first to a slight abrasion on the hand, but that he neglected for nearly two weeks to give notice after he had been informed by a doctor that his hand was in a serious condition.

The employer is prejudiced by failure of a workman to give prompt notice of an injury to his finger, where notice was not given for five days after the accident, at which time the finger was in such a septic condition that amputation was necessary, and where evidence tended to show that, had the wound been attended to promptly, and dressed with antiseptic dressing in due

the want of notice. He is still bound to inquire whether the defendant was, as a matter of fact, prejudiced." 62

Where the character of the injury is such that immediate care on the part of the employer will reduce the amount of compensation for which he is liable, he will be held to have been prejudiced by a failure on the part of the applicant to give immediate notice.63 So, too, the time, subsequent trouble with it would not have occurred. Wassell v. Russell (1915) 112 L. T. N. S. (Eng.) 902.

The county court judge is not justified in finding that a notice had been given as soon as possible after an accident, and that the employer had not been prejudiced by the want of notice, where a barber's assistant claimed to have suffered an accident on January 17th, at which time his hand began to smart from dermatitis, and no notice was given until April, when two letters were written by the applicant's solicitor to the employer, claiming damages for injury caused by the use of a dangerous dry shampoo. Petschett v. Preis (1915) 31 Times L. R. (Eng.) 156, [1915] W. C. & Ins. Rep. 11, 8 B. W. C. C. 44.

A delay of over five months in giving notice of an accident will bar a claim for compensation, where the applicant, at the time of the alleged accident, was using a heavy beadle for driving piles into the ground, and had to drop it, as he felt that he had injured himself, the court holding that since there was no apparent injury, it was of the utmost importance that the employers should know of the alleged accident immediately. Ing v. Higgs (1914) 110 L. T. N. S. (Eng.) 442, [1914] W. C. & Ins. Rep. 86, 7 B. W. C. C. 65.

It is error for the county court judge to find that the employer was not prejudiced by failure to give notice as soon as practical after the accident, where the evidence showed that a charwoman fell upon the employer's staircase and injured her knee somewhat, and subsequently, because of the injury to her knee, fell upon her own staircase and received a serious injury, and no notice was given of the accident for three weeks after it occurred. Hodgson v. Robins [1914] W. C. & Ins. Rep. (Eng.) 65, [1914] W. N. 47, 7 B. W. C. C. 232.

The county court judge may find that the employers were prejudiced by the failure of a workman to give notice promptly where he injured his thumb on February 19th, and treated the accident as trivial,

employer will be considered prejudiced where, because of the lapse of time, it is difficult to tell whether the claimant is suffering from the injury or from some other cause.64 The county court judge is not justified in finding that the employer was not prejudiced by the failure of the workman to give notice of his injury until two months after, where the job was finished on the day of the accident, and the men were all paid off.65 But the county court judge may find that the employers were not prejudiced by failure to give notice of the accident, where there was no evidence that, if the notice had been given immediately after the accident, they would have been in any better position than they actually were at the time when the notice was given.66

and accidentally hit the thumb again and reopened the wound on March 10th, and the thumb grew gradually worse until, on March 19th, he consulted the doctor, who found that he was suffering from blood poisoning, and grew continually worse until he died on March 27th of blood poisoning, and no notice of the accident was given to the employers until after his death. Taylor v. Nicholson [1915] W. C. & Ins. Řep. (Eng.) 42, 8 B. W. C. C. 114.

64 The county court judge may find that failure to give notice for four months is prejudicial to the employer where the latter's doctor has testified that it would have been easier to judge whether the employee's condition was due to the injury or not if he had seen him earlier. Bramley v. Evans (1909) 3 B. W. C. C. (Eng.) 34. The employer may be found to be prejudiced by failure to give notice as soon as practicable after the accident where it appeared that the notice was not given until four weeks after the accident, and that the employer's witnesses were unable at that time to remember the particular work that the injured workman was doing at the time of the accident. Ungar v. Howell [1914] W. C. & Ins. Rep. (Eng.) 58, 7 B. W. C. C. 36.

It is error for the county court judge to hold that the employer was not prejudiced by failure to receive notice of an accident for two weeks after it occurred, where the only evidence of an accident was that given by a fellow workman of the employee, who testified that he had helped extract a splinter from the left hand of the deceased, and the doctor who attended the workman testified that the workman, who died about ten days after the injury, was suffering from septic poisoning in the right arm. Ford v. Gaiety Theatre [1914] W. C. & Ins. Rep. (Eng.) 53, 7 B. W. C. C:

197.

It cannot be said that the master was not prejudiced by not having notice of the accident within a reasonable time after it occurred, where the medical evidence showed that the abscess from which the applicant

The fact that the employer knew of the injury, and was kept informed as to the workman's condition, tends to show that he was not prejudiced by a failure to give the notice.67 So, too, it may be said that the employer was not prejudiced where the workman consulted the employer's doctor a day or two after he met with the accident, and the doctor learned the whole history of the occurrence, prescribed the proper medical treatment, and recommended eye specialists, who were consulted.68 The mere length of time before the notice was given after the accident is usually immaterial on the question of prejudice to the employer. But, in a few cases, emphasis has been laid upon the lapse of time.69

The statute provides that the want was suffering might have come from other causes, although it most probably came from this blow. Egerton v. Moore [1912] 2 K. B. (Eng.) 308, 81 L. J. K. B. N. S. 696, 106 L. T. N. S. 663, [1912] W. C. Rep. 250, [1912] W. N. 89, 5 B. W. C. C. 284.

65 Burrell v. Holloway Bros. (1911) 4 B. W. C. C. (Eng.) 239.

66 Haward v. Rowsell [1914] W. C. & Ins. Rep. (Eng.) 314, 7 B. W. C. C. 552.

It may be found that an employer was not prejudiced by reason of the failure of an injured employee to give him written notice of the accident, where the employee had received full medical advice and attendance from several doctors immediately following the injury, and upon the advice of two of the doctors underwent an operation. Barrie v. Diamond Coal Co. (1914; Alberta) 7 B. W. C. C. 1061.

Where a boy employed as a painter left off work because of illness, and about a month after consulted his doctor, who sent him to bed, and he was in bed for five months, and, as soon as he could get out, went to his employers and told them of his illness, and that the doctor thought it was lead poisoning, and subsequently became worse, and about two months afterwards a formal complaint for compensation was made, and the certifying surgeon stated that the boy was suffering from lead poisoning, and that the disablement commenced at about the time he left off work, compensation was allowed him over the objection of the employers that notice was not given in time, and that they had been prejudiced. Sanderson v. Harkinson (1913) 6 B. W. C. C. (Eng.) 648.

67 The employers cannot be said to have been prejudiced for failure of statutory notice where they had full knowledge of the accident as soon as practicable after it happened, and repeatedly had reports from the workman, which they sent on to their insurance company. Stinton v. Brandon Gas Co. [1912] W. C. Rep. (Eng.) 132, 5 B. W. C. C. 426.

68 Bruno v. International Coal & Coke Co. (1913; Alberta) 7 B. W. C. C. 1033.