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An appeal from an order merely deal (2) Notice in respect of an injury uning with a question of costs, arising un- der this act shall give the name and adder this subsection, has been held by the dress of the person injured, and shall court of appeal to lie to the divisional state in ordinary language the cause of

But it was subsequently held the injury and the date at which the by the divisional court that such an accident happened, and shall be served appeal lay to the court of appeal and not on the employer, or, if there is more to the divisional.36

than one employer, upon one of such As to the awarding of costs generally employers. in arbitration proceedings under the act, (3) The notice may be served by desee cases construing paragraph 7 of the livering the same at, or sending it by second schedule, cited post, 181.

post in a registered letter addressed to,

the residence or place of business of the IV. Notice of the accident and claim for person on whom it is to be served, compensation ($ 2).

(4) Where the employer is a body of a. Text of $ 2.

persons, corporate or unincorporate, the

notice may also be served by delivering Sec. 2. (1) Proceedings for the recov- the same at, or by sending it by post ery under this act of compensation for in a registered letter addressed to, the an injury shall not be maintainable un- employer at the office, or, if there be less notice of the accident has been given more than one office, any one of the as soon as practicable after the happen-ollices of such body. ing thereof and before the workman has [The changes in ģ 2 are matters of devoluntarily left the employment in which tail rather than of essential difference. he was injured, and unless the claim The provisions in subsec. 1, in respect for compensation with respect to such to the giving of an amended notice, and accident has been made within six the postponing of the hearing, the makmonths from the occurrence of the acci- ing of an absence from the United Kingdent causing the injury, or, in case of dom as a sufficient ground for failure death, within six months from the time to give notice, and the provisions in reof death: Provided always that (a) The spect to entire failure to give notice, want of or any defect or inaccuracy in are new. The earlier act, by a subsecsuch notice shall not be a bar to the tion omitted from the act of 1906, promaintenance of such proceedings, if it vided as follows: is found in the proceedings for settling (4) The notice may also be served by the claim that the employer is not, or post, by a registered letter addressed to would not, if a notice or an amended the person on whom it is to be served, at notice were then given and the hearing his last known place of residence or postponed, be prejudiced in his defense place of business, and if served by post by the want, defect, or inaccuracy, or shall be deemed to have been served at that such want, defect, or inaccuracy was the time when the letter containing the occasioned by mistake, absence from the same would have been delivered in the United Kingdom, or other reasonable ordinary course of post; and in proving cause; and

the service of such notice it shall be suf(b) The failure to make a claim with- ficient to prove that the notice was propin the period above specified shall not erly addressed and registered.] be a bar to the maintenance of such proceedings, if it is found that the failure

b. In general. occasioned by mistake, absence from the United Kingdom, or other rea As to notice of injury under the Amsonable cause.

erican statutes, see post, 244. under the employers' liability act and an court and not to the court of appeal. 19 award of compensation is made under § 1, Times L. R. (Eng.) 419, 88 L. T. N. S. subsec. 4 of the compensation act, the costs 790, 5 W. C. C. 142. to be deducted are the difference between 35 Keane v. Nash (Eng.) supra. the defendant's bill of costs in the action 36 An appeal from the decision of a county and the amount of costs to which the court judge in deducting from an award plaintiff would have been entitled had he of compensation the costs of an action proceeded originally under the compensa - brought by an applicant under the employtion act. Keane v. Nash (1902; C. C.) 114 ers' liability act in which she suffered a L. T. Jo. (Eng.) 102, 5 W. C. C. 53. An nonsuit lies to the court of appeal and appeal from this decision was taken to the not to the divisional court. Williams v. court of appeal, but it was there held that Army & Navy Auxiliary Co-op. Soc. (1907) an appeal from an order denying a review 23 Times L. R. (Eng.) 408. of the taxation of costs lay to the divisional

was

ing.39

The word "proceedings" is used in a compensation to be assessed under the “sense different from that which would act, had subsequently died, the mother describe legal procedure ordinarily." 37 and sisters of the deceased workman canIt signifies a claim for compensation, and not, after six months have expired, be a refusal of such compensation.38 A sisted so as to secure compensation as notice of injury, not followed by a claim dependents.43 But the dependents of a for compensation, is not a "proceed- deceased workman may take advantage

And a request for arbitration of the notice of injury and claim for made by an injured workman is not a compensation made by the deceased durnotice of claim of which the employer ing his lifetime, and it is not necessary must give notice to the insurance com- that such dependents file a new notice pany, under his contract with the latter and claim after his death.44 whereby it was provided that the insured should forward to the insurance c. Form and contents of notice. company every written notice or information as to any verbal notice of claim It has been held in several cases in the arising through any accident. 40 The court of appeal that the notice of the inprovisions of the public authorities pro- jury must be in writing. 45 But in a case tection act, 1893, relative to the time in the House of Lords compensation was within which actions must be commenced, awarded although it appeared that only have no application to proceedings a verbal notice was given; but the point brought under the compensation act. 41 actually decided was that the claim for

If the workman has failed, without compensation need not be for a stated reasonable excuse and to the prejudice amount. 46 In a later case in the House of the employer, to give notice as soon of Lords, however, the language used by as practicable after the injury, such one of the Lords delivering judgment failure will bar his dependents from ob- merely indicates that in his opinion the taining compensation for such injury notice should be in writing; but the after the workman's death.42 So, where point was not decided. 47 the father of a deceased workman, hav- The applicant is required to describe ing failed to recover damages in an ac- the nature of the injury but not the tion against the employer and requested effects thereof.48

37 Lord Halsbury & Powell v. Main Col. cause another person over whose volition liery Co. [1900] A. C. (Eng.) 366, 69 L. J. they have no control bas chosen to exercise Q. B. N. S. 758, 49 Week. Rep. 49, 83 L. a personal privilege." T. N. S. 85, 16 Times L. R. 466, 65 J. P. 44 Moffat v. Crow's Nest Pass Coal Co. 100.

(1913) 7 B. W. C. C. (B. C.) 1040. 38 Powell v. Main Colliery Co. [1900] 2

45 Hughes Coed Talon Colliery Co. Q. B. (Eng.) 145, 69 L. J. Q. B. N. S. 542, [1909] 1 K. B. (Eng.) 957, 78 L. J. K. B. N. 64 J. P. 323, 48 Week. Rep. 534, 82 L. T. S. 539, 100 L. T. N. S. 555; Griffiths v. N. S. 340, 16 Times L. R. 282, reversed by Atkinson (1912) 106 L. T. N. S. (Eng.) 852, the House of Lords on other points in [1912] W. C. Rep. 277, 5 B. W. C. C. 345; [1900] A. C. (Eng.) 366.

Brady v. Canadian P. R. Co. (1913) 6 B. 39 Perry v. Clements (1901) 17 Times W. C. C. (Eng.) 680. L. R. (Eng.) 525, 49 Week. Rep. 669. "I may say at once that prima facie the

40 Wilkinson v. Car & General Ins. Corp. act says that notice in writing shall be (1914) 110 L. T. N. S. (Eng.) 468, (1914) given of the accident.” Lord Cozens-Hardy, W. N. 31, 58 Sol. Jo. 233.

M. R., in Fox v. Barrow Hematite Steel Ço. 41 Fry v. Cheltenham Corp. (1911) 81 L. (1915) 84 L. J. K. B. N. S. (Eng.) 1327. J. K. B. N. S. (Eng.) 41, 105 L. T. N. S. 46 Thompson v. Goold [1910] A. C. (Eng.) 495, 28 Times L. R. 16, 76 J. P. 89, 56 409, 79 L. J. K. B. N. S. 905, 103 L. T. Sol. Jo. 33, [1911] W. N. 199, [1912] W. N. S. 81, 26 Times L. R. 526, 54 Sol. Jo. C. Rep. 105, 5 B. W. C. C. 162, 10 L. G. 599, 3 B. W. C. C. 392. R. 1.

47 In Hayward v. Westleigh Colliery Co. 42 Grime v. Fletcher [1915] 1 K. B. (Eng.) (1915] A. C. (Eng.) 540, 84 L. J. K. B. 734, 31 Times L. R. 158, 50 L. J. 55, 84 L. N. S. 61, 112 L. T. N. S. 1001, 31 Times J. K. B. N. S. 847, 8 B. W. C. C. 69, (1915] | L. R. 215, 8 B. W. C. C. 278, [1915] W. N. W. N. 43, 59 Sol. Jo. 233.

67, 59 Sol. Jo. 269, reversing 7 B. W. C. C. 43 McGinty v. Kyle [1911] S. C. (Scot.) | 53, [1914] W. C. & Ins. Rep. 21, Earl 589. The Lord President observed: “I can- Lorebun said that the notice was not given not see that other people who have allowed "in the form required by the statute, that the statutory time to pass can take to is to say, a written notice.” Compensation themselves the benefits of proceedings which was nevertheless allowed because it was during the six months allowed to them held that the employer had not been prejumight never have been turned into a claim diced by lack of prompt notice. for compensation at all, and which only 48 The applicant who properly describes become proceedings for compensation be. 'the nature of the accident does not fail

V.

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pensation.57

d. To whom notice may be given. nor in writing But the fact that the

wife of an injured workman asked the It is not necessary that notice be given employer if he would compensate her to the employer personally.49 But an and her children is not sufficient as a employee who merely measures up the claim for compensation.55 A request for work given out and calculates the time arbitration is a sufficient "claim for comallowed is not a proper person to whom pensation." 56 And a letter containing notice could be given of the accident,50 a notice of the accident and a descripnor is the foreman of a department of a tion of the injuries, and a request to large factory.51

know what compensation would be al

lowed, and a further request for an e. Claim for compensation. immediate answer, is a claim for com

So, a document wherein a This phrase means, not the initiation workman made a claim for compensaof proceedings before the tribunal by tion for an injury received upon a deswhich the compensation is to be assessed, ignated day, “as per claim in the embut a notice of a claim for compensation, ployers' liability act” is a valid claim.58 sent to the workman's employer.52 The ! And a statement in an answer to an apclaim need not be for a definite sum,53 plication for compensation that, withmerely because the injury is not accu 53 Thompson v. Goold (1910] A. C. (Eng.) rately described from a medical point of 409, 79 L. J. K. B. N. S. 905, 103 L. T. N. view. Sidney v. Collins (1910) 3 B. W. S. 81, 26 Times L. R. 526, 54 Sol. Jo. 599, C. C. (Eng.) 433.

3 B. W. C. C. 392, overruling former au49 Where the overman of a level writes thorities and dicta to the contrary. To down the facts of the injury to a boy | the same effect: Fraser v. Great North of in a mine in the presence of the boy and Scotland R. Co. (1901) 3 F. 908, 38 Scot. his father, it is a sufficient notice. Stev. L. R. 653, 9 Scot. L. T. 96; Allen v. Hoey ens v. In les (1912] 1 K. B. (Eng.) 36, (1914) 49 Ir. Law Times, 39, 8 B. W. C. Č. (1911] W. N. 205, 81 L. J. K. B. N. S. 424. 47, 105 L. T. N. S. 617.

Among the cases that are to be conNotice of the accident to the cashier of sidered as overruled are the following: the employer, whose duty it was to find a Marno v. Workman (1899) 33 Ir. Law substitute for the workman and to deter- | Times, 183, as cited in Allen v. Hoey (Ir.) mine the amount he should be paid, is no- supra; Kilpatrick v. Wemyss Coal Co. tice to the company. Butt v. Gellyceidrim [1906–07] S. C. (Scot.) 320; Maver v. Park Colliery Co. (1909) 3 B. W. C. C. (Eng.) (1905) 8 Sc. Sess. Cas. 5th series (Scot.) 44.

250; Bennett v. Wordie (1899) 1 F. 855, 36 50 Jackson v. Vickers [1912] W. C. Rep. Scot. L. R. 643, 7 Scot. L. T. 10; Powell v. (Eng.) 274, 5 B. W. C. C. 432.

Main Colliery Co. [1900] A. C. (Eng.) 366, 51 Pimm v. Clement Talbot (1914)_7 B. 69 L. J. Q. B. N. S. 758, 49 Week. Rep. 49, W. C. C. (Eng.) 565; Plumley v. Ewart 83 L. T. N. S. 85, 16 Times L. R. 466, 65 & Son (1915) 8. B. W. C. C. (Eng.) 464. J. P. 100 (dicta). 52 Powell v. Main Colliery Co. [1900] A.

54 Lowe v. Myers (1906] 2 K. B. (Eng.) C. (Eng.) 366, 69 L. J. Q. B. N. S. 758, 49 | 265, 75 L. J. K. B. N. S. 651, 95 L. T. N. S. Week. Rep. 49, 83 L. T. N. S. 85, 16 Times 35, 22 Times L. R. 614. See also ThompL. R. 466, 65 J. P. 100, holding that the son v. Goold (Eng.) supra. proceedings were in time where a workman A formal claim is unnecessary.

Devons sent to his employers, within six months, v. Anderson (1911) S. C. 181, 48 Scot. L. a notice of the accident, and also a notice R. 187, 4 B. W. C. C. 354. stating that he claimed a certain amount as 55 Johnson v. Wootton (1911) 27 Times compensation for the injury, and then, more L. R. (Eng.) 487, 4 B. W. C. C. 258. than six months after the accident, filed a 56 Wright v. Bagnall [1900] 2 Q. B. (Eng.) request for arbitration in the county court. 240, 82 L. T. N. S. 346, 69 L. J. Q. B. N. S. The decision of the court of appeal ([1900] 551, 64 J. P. 420, 48 Week. Rep. 533, 16 2 Q. B. (Eng.) 145, 69 L. J. Q. B. N. S. Times L. R. 327; Fraser v. Great North of 542, 64 J. P. 323, 48 Week. Rep. 534, 82 Scotland R. Co. (1901) 3 Sc. Sess. Cas. 5th L. T. N. S. 340, 16 Times L. R. 282) was series, 908, 38 Scot. L. R. 653, 9 Scot. L. reversed.

T. 96. A letter was written by the agent of a But a request on the part of an agent deceased servant's father to the employer for the insurance company which has into the following effect: “I am instructed sured the employer, to accept compensation, by his father to intimate that he holds does not do away with the necessity of you liable for compensation. This notice filing a claim. Devons v. Anderson [1911] is given in terms of the statute." Held, S. C. 181, 48 Scot. L. R. 187, 4 B. W. C. C. that the letter was not a claim for com- | 354. pensation, but merely' notice of an inten 57 Trenear v. Wells (1900; C. C.) 3 W. tion to make a claim. Bennett v. Wordie C. C. (Eng.) 58. (1899) 1 Sc. Sess. Cas. 5th series, 855, 36 58 Linklater v. Webster (1904) 6 W. C. Scot. L. R. 643, 7 Scot. L. T. 10.

C. (Eng.) 50.

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occurrence

V.

in a few weeks of the accident, the , filing a claim against the employer has respondent had paid the applicant a cer- expired.61 tain sum, which had been accepted in satisfaction of all claim, is evidence lg. Employer "prejudiced in his detending to show that the applicant had

fense." made some claim for compensation within the statutory six months.59

A trial judge is in error if he dismiss

es the proceeding, when he has deterf. Time within which claim must be mined that there was no good excuse for made.

the want of notice. He is still bound to

inquire whether the defendant was, as a The six months are to be reckoned matter of fact, prejudiced.62 from day to day without reference to Where the character of the injury is the particular moment of the day at such that immediate care on the part of which the injury occurs or the notice is the employer will reduce the amount of given.60 A person partially dependent compensation for which he is liable, he may await an award to one wholly de- will be held to have been prejudiced by pendent before filing his claim for a a failure on the part of the applicant to share in the award, although the time for I give immediate notice.63 So, too, the

59 Lowe v. Myers [1906), 2 K. B. (Eng.) | time, subsequent trouble with it would not 265, 75 L. J. K. B. N. S. 651, 95 L. T. N. S. have occurred. Wassell v. Russell (1915) 35, 22 Times L. R. 614.

112 L. T. N. S. (Eng.) 902. 60 Where the accident occurred at 11:30 The county court judge is not justified A. M. on November 24th, 1908, a claim for in finding that a notice had been given as compensation lodged at 5:30 P. M. on May soon as possible after an accident, and that 24th, 1909, is within six months from the the employer had not been prejudiced by

of the accident. Peggie the want of notice, where a barber's assist. Wemyss Coal Co. (1909–10] S. C. 93, 47 ant claimed to have suffered an accident Scot. L. R. 149 (contention was that claim on January 17th, at which time his hand was not "timeous,” because it was not put began to smart from dermatitis, and no in until a later hour of the day on which notice was given until April, when two the six months expired).

letters were written by the applicant's 61 Smith v. Pearson (1909; C. C.) 2 B. solicitor to the employer, claiming damW. C. C. (Eng.) 468.

ages for injury caused by the use of a dan62 McLean v. Carse (1899) 1 Sc. Sess. Cas. gerous dry shampoo. Petschett v. Preis 5th series, 878, 36 Scot. L. R. 678, 7 Scot. (1915) 31 Times L. R. (Eng.) 156, [1915] L. T. 26.

W. C. & Ins. Rep. 11, 8 B. W. C. C. 44. 63 Where a lad working in a colliery A delay of over five months in giving scratched his hand, but paid no attention notice of an accident will bar a claim for to it, and worked two days afterward, compensation, where the licant, at the when it became worse, and his mother time of the alleged accident, was using a poulticed it, and he worked another day, heavy beadle for driving piles into the after which he saw the company's physician ground, and had to drop it, as he felt that and was ordered by him to stop work, and he had injured himself, the court holding written notice was not given to the com

that since there was no apparent injury, pany for two weeks thereafter, the county it was of the utmost importance that the court judge may find that the employers employers should know of the alleged acwere prejudiced because of the failure to cident immediately. Ing v. Higgs (1914) give the notice, where the doctor gave evi- 110 L. T. N. S. (Eng.) 442, [1914] W. C. dence that working after the injury did the & Ins. Rep. 86, 7 B. W. C. C. 65. hand considerable harm. Snelling v. Norton It is error for the county court judge Hill Colliery Co. [1913] W. C. & Ins. Rep. to find that the employer was not preju(Eng.) 497, 109 L. T. N. S. 81, 6 B. W. C. diced by failure to give notice as soon as C. 506. Cozens-Hardy, M. R., stated that practical after the accident, where the the lad was not to be blamed for not pay- evidence showed that a charwoman fell ing attention at first to a slight abrasion upon the employer's staircase and injured on the hand, but that he neglected for her knee somewhat, and subsequently, benearly two weeks to give notice after he cause of the injury to her knee, fell upon had been informed by a doctor that his her own staircase and received a serious hand was in a serious condition.

injury, and no notice was given of the The employer is prejudiced by failure of accident for three weeks after it occurred. a workman to give prompt notice of an Hodgson v. Robins [1914] W. C. & Ins. injury to his finger, where notice was not Rep. (Eng.) 65, [1914] W. N. 47, 7 B. W. given for five days after the accident, at C. C. 232. which time the finger was in such a septic The county court judge may find that condition that amputation was necessary, the employers were prejudiced by the failand where evidence tended to show that, ure of a workman to give notice promptly had the wound been attended to promptly, where he injured his thumb on February and dressed with antiseptic dressing in due | 19th, and treated the accident as triviai,

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employer will be considered prejudiced The fact that the employer knew of the where, because of the lapse of time, it injury, and was kept informed as to the is difficult to tell whether the claimant workman's condition, tends to show that is suffering from the injury or from some he was not prejudiced by a failure to other cause. The county court judge give the notice.67 So, too, it may be is not justified in finding that the employ- said that the employer was not prejuer was not prejudiced by the failure of diced where the workman consulted the the workman to give notice of his in- employer's doctor a day or two after he jury until two months after, where the met with the accident, and the doctor job was finished on the day of the ac- learned the whole history of the occurcident, and the men were all paid off.65 | rence, prescribed the proper medical But the county court judge may find that treatment, and recommended eye specthe employers were not prejudiced by ialists, who were consulted.68 The mere failure to give notice of the accident, length of time before the notice was where there was no evidence that, if the given after the accident is usually imnotice had been given immediately after material on the question of prejudice the accident, they would have been in to the employer. But, in a few cases, any better position than they actually emphasis has been laid upon the lapse were at the time when the notice was of time.69 given.66

The statute provides that the want and accidentally hit the thumb again and was suffering might have come from other reopened the wound on March 10th, and causes, although it most probably came the thumb grew gradually worse until, on from this blow. Egerton v. Moore [1912] March 19th, he consulted the doctor, who | 2 K, B. (Eng.) 308, 81 L. J. K. B. N. S. 696, found that he was suffering from blood 106 L. T. N. S. 663, (1912] W. C. Rep. 250, poisoning, and grew continually worse until [1912] W. N. 89, 5 B. W. C. C. 284. he died on March 27th of blood poisoning, 66 Burrell v. Holloway Bros. (1911) 4 B. and no notice of the accident was given to W. C. C. (Eng.) 239. the employers until after his death. Taylor 66 Haward v. Rowsell [1914] W. C. & v. Nicholson [1915] W. C. & Ins. Rep. Ins. Rep. (Eng.) 314, 7 B. W. C. C. 552. (Eng.) 42, 8 B. W. C. C. 114.

It may be found that an employer was 64 The county court judge may find that not prejudiced by reason of the failure of failure to give notice for four months is an injured employee to give him written prejudicial to the employer where the lat. I notice of the accident, where the employee ter's doctor has testified that it would had received full medical advice and attendhave been easier to judge whether the em ance from several doctors immediately fol. ployee's condition was due to the injury lowing the injury, and upon the advice of or not if he had seen him earlier. Bramley two of the doctors underwent an operation. v. Evans (1909) 3 B. W. C. C. (Eng.) 34. Barrie v. Diamond Coal Co. (1914; Alberta)

The employer may be found to be preju. 7 B. W. C. C. 1061. diced by failure to give notice as soon as Where a boy employed as a painter left practicable after the accident where it ap- off work because of illness, and about a peared that the notice was not given until month after consulted his doctor, who sent four weeks after the accident, and that him to bed, and he was in bed for five the employer's witnesses were unable at months, and, as soon as he could get out, that time to remember the particular work went to his employers and told them of his that the injured workman was doing at illness, and that the doctor thought it was the time of the accident. Ungar v. Howell lead poisoning, and subsequently became [1914] W. C. & Ins. Rep. (Eng.) 58, 7 B. worse, and about two months afterwards a W. C. C. 36.

formal complaint for compensation was It is error for the county court judge made, and the certifying surgeon stated to hold that the employer was not preju- that the boy was suffering from lead diced by failure to receive notice of an poisoning, and that the disablement comaccident for two weeks after it occurred, menced at about the time he left off where the only evidence of an accident was work, compensation was allowed him over that given by a fellow workman of the the objection of the employers that notice employee, who testified that he had helped was not given in time, and that they had extract a splinter from the left hand of been prejudiced. Sanderson v. Harkinson the deceased, and the doctor who attended (1913) 6 B. W. C. C. (Eng.) 648. the workman testified that the workman, 67 The employers cannot be said to have who died about ten days after the injury, been prejudiced for failure of statutory was suffering from septic poisoning in the notice where they had full knowledge of the right arm. Ford v. Gaiety Theatre (1914) accident as soon as practicable after it hapW. C. & Ins. Rep. (Eng.) 53, 7 B. W. C. C: pened, and repeatedly had reports from the 197.

workman, which they sent on to their inIt cannot be said that the master was surance company. Stinton v. Brandon Gas not prejudiced by not having notice of the Co. [1912] W. C. Rep. (Eng.) 132, 5 B. W. accident within a reasonable time after it C. C. 426. occurred, where the medical evidence showed 68 Bruno v. International Coal & Coke Co. that the abscess from which the applicant (1913; Alberta) 7 B. W. C. C. 1033.

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