employer will be considered prejudiced j 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.64 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 im- . notice 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

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. Rep. (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 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. Č. Rep. (Eng.) 132, 5 B. W. C. C. 426.

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

of a
notice shall not be a bar to
the maintenance of proceedings if it is
found that the employer is not "preju-
diced in his defense" by such want of
notice; consequently the court of appeal
has held that the fact that the employer
was not able to give the insurance com-

pany notice of the accident, thereby los-
ing his right of indemnity against such
insurance company, is not relevant upon
the question of prejudice, since such
failure to give notice to the insurance
company does not prejudice the employ-
er in his defense to the action by the
employee.70 A contrary decision by the
county court judge must be considered as

69 A failure to give notice for four months is unreasonable, and may be found prejudicial to the employer. Stronge v. Hazlett (1910) 44 Ir. Law Times, 10, 3 B. W. C. C. 581.

The employers will presumably be prejudiced by a failure to give notice of an accident for upwards of five months. Shannon v. Bainbridge Weaving Co. (1911) 45 Ir. Law Times, 74.

A delay of four months in giving notice of injury which results in hernia is prejudicial to the employers. Jackson v. Vickers [1912] W. C. Rep. (Eng.) 274, 5 B. W. C. C.

432.

70 Butt v. Gellyceidrim Colliery Co. (1909) 3 B. W. C. C. (Eng.) 44.

71 A delay in giving notice of a claim to the respondent, whereby he loses his right to indemnity against an insurance company, is prejudicial to him. Barker v. Holmes (1904; C. C.) 117 L. T. Jo. (Eng.) 158, 6 W. C. C. 52.

72 Shearer v. Miller (1899) 2 Sc. Sess. Cas. 5th series, 114, 37 Scot. L. R. 80, 7 Scot. L. T. 231; Hancock v. British Westinghouse Electric Co. (1910) 3 B. W. C. C. (Eng.) 210; Hughes v. Coed Talon Colliery Co. [1909] 1 K. B. (Eng.) 957, 78 L. J. K. B. N. S. 539, 100 L. T. N. S. 555; Dalgiesh v. Gartside [1914] W. C. & Ins. Rep. (Eng.) 319, 7 B. W. C. C. 535; Hodgson v. Robins [1914] W. C. & Ins. Rep. (Eng.) 65, [1914] W. N. 47, 7 B. W. C. C. 232; Hunt v. Highley Min. Co. [1914] W. C. & Ins. Rep. (Eng.) 402, 7 B. W. C. Č. 716; Murphy v. Shirebrook Colliery [1913] W. C. & Ins. Rep. (Eng.) 184, 6 B. W. C. C. 237; Pimm v. Clement Talbot [1914] W. C. & Ins. Rep. (Eng.) 350, 7 B. W. C. C. 565; Tibbs v. Watts (1909) 2 B. W. C. C. (Eng.) 164; Eydmann v. Premier Accumulator Co. [1915] W. C. & Ins. Rep. (Eng.) 82, 8 B. W. C. C. 121.

The applicant must prove that he gave notice of the claim within six months of the occurrence of the accident, or that his failure to do so was occasioned by mistake, absence from the United Kingdom, or other reasonable cause. Roberts v. Crystal Palace Foot Ball Club (1909) 3 B. W. C. C. (Eng.) 51.

overruled, although no mention is made of this case in the court of appeal.71

The onus lies on the workman to show that the employer has not been prejudiced by the former's failure to give due notice of the accident.72 If the arbitrator refuses to find that the employer was not prejudiced, and there is evidence to support his conclusions, the court of appeal will not interfere.73 It is not error for the county court judge to omit the words "in his defense" in a finding that the workman had not discharged the onus of proving that the employers "had not been prejudiced."

1974

given until nearly a month thereafter, the applicant must show affirmative proof that the employer was not prejudiced by failure to give prompt notice. Lacey v. Mowlem [1914] W. C. & Ins. Rep. (Eng.) 63, 7 B. W. C. C. 135.

Where the workman had failed to give notice of the injury within a reasonable time, affirmative evidence must be introduced to show that the employer was not prejudiced because of such failure. Grime v. Fletcher [1915] 1 K. B. (Eng.) 734, 31 Times L. R. 158, 50 L. J. 55, 84 L. J. K. B. N. S. 847, [1915] W. N. 43, 59 Sol. Jo. 233, 8 B. W. C. C. 69.

In Hayward v. Westleigh Colliery Co. [1915] A. C. (Eng.) 540, 84 L. J. K. B. N. S. 661, 112 L. T. N. S. 1001, 31 Times L. R. 215, [1915] W. N. 67, 59 Sol. Jo. 269, 8 B. W. C. C. 278, reversing, [1914] W. C. & Ins. Rep. 21, 7 B. W. C. C. 53, it was held that the arbitrator might hold that the employers were not prejudiced where there was no inherent probability that could be seen that the employers would be prejudiced by the absence of a notice for a few days, and they gave no evidence that they had been prejudiced.

A workman has the burden of showing that the employer has not been prejudiced, or, if the employer has been prejudiced, the workman must prove that the want of notice was occasioned by a mistake or other reasonable cause. 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.

The workman has not discharged the burden of proving that the employers were not prejudiced by delay in giving notice where he claimed to have been ruptured on the 27th of the month, and gave notice on the 30th, when there was no reason given for the delay, and no evidence to show that the employer had not been prejudiced. Nicholls v. Briton Ferry U. D. C. [1915] W. C. & Ins. Rep. (Eng.) 14, 8 B. W. C. C. 42.

73 Miller v. Richarson [1915] 3 K. B. (Eng.) 76, 84 L. J. K. B. N. S. 1366.

74 Snelling v. Norton Hill Colliery Co. [1913] W. C. & Ins. Rep. (Eng.) 497, 109

Where no notice of the accident was L. T. N. S. 81, 6 B. W. C. C. 506.

the workman's doctor did not know what sation, may, under all the circumstances was the matter with him.78 So, the fact of the case, be a sufficient excuse for that the injuries were slight, and the not giving notice.79 But notice must be workman did not intend to ask compen- given as soon as the dangerous character caused a serious disease, is sufficient reason | diced by his failure to give timely notice, for failure to give notice of the accident. since the want of notice was occasioned by Hoare v. Arding (1911) 5 B. W. C. C. (Eng.) mistake for which there was reasonable 36. cause. Rankine v. Alloa Coal Co. (1904) 6 Sc. Sess. Cas. 5th series, 375, 41 Scot. L R. 306, 11 Scot. L. T. 670.

Where the applicant received a blow on the right side of her head, and there were no immediate effects, but subsequently traumatic epilepsy supervened, and she gave notice shortly after she knew that the epilepsy was caused by the blow, the county court judge may find that the employers were not prejudiced, although it was about six months after the injury. Eaton v. Evans (1911) 5 B. W. C. C. (Eng.) 82.

It is a sufficient excuse for not giving notice of an accident that the workman did not lose any time from his work for several months, and the disease which subsequently supervened was latent in character, and the workman did not know that it was the result of the accident. Thompson v. NorthEastern Marine Engineering Co. (1914) 110 L. T. N. S. (Eng.) 441, [1914] W. N. 22, [1914] W. C. & Ins. Rep. 13, 7 B. W. C. C.

49.

78 It is a sufficient excuse for failure to give notice for several months, that neither the workman nor his doctors knew what

ailed him. Eke v. Hart-Dyke [1910] 2 K. B. (Eng.) 677, 80 L. J. K. B. N. S. 90, 103 L. T. N. S. 174, 26 Times L. R. 613, 3

B. W. C. C. 482, 3 N. C. C. A. 230. CozensHardy, M. R., said: "Neither of the doctors was at the time prepared to say that

there had been an accident within the mean

Where an injured workman intentionally did not give notice of his accident at the time, believing that his injuries would not keep him from work, but after going to the hospital realized that his injuries were serious, and gave written notice of the accident to his employers about three months after the accident, his delay in giving notice is due to mistake or other reasonable cause within the meaning of § 2 Brown v. Lochgelly Iron & Coal Co. [1907] S. C. (Scot.) 198.

There is reasonable cause for failing to give a formal notice of the injury, where the claimant believes that his injuries are not serious, and a day after the accident, and again a month after, he gives a verbal notice of it. Refuge Assur. Co. v. Millar (1911) 49 Scot. L. R. 67.

The failure of a collier to give notice within six months that he was suffering from nystagmus is excusable where he had could be cured by spending a short time above ground, and, there being at that time a strike at his mine, he hoped during the continuance thereof to live in the open air. and, by adopting the course recommended by the doctor, to cure the disease, and not put in a claim. Moore v. Naval Colliery Co [1912] 1 K. B. (Eng.) 28, 81 L. J. K. B N. S. 149, 105 L. T. N. S. 838, 5 B. W. C. C. 87, [1912] W. C. Rep. 81.

received medical advice that the disease

ing of the act. The wife, of course, knew that her husband was very ill, and ill from a disease from which he died, but it was not present to any of their minds that there had been an accident in respect of which notice should have been given. I think, Where an injured workman failed to give therefore, that there was reasonable cause' notice of the accident because he thought for not giving the notice, and although the his injuries were only slight, and did give absence of notice may have, to some extent, actual notice only eighteen weeks after the prejudiced the employer, in my opinion it injury, the excuse is reasonable. Millar v. does not prevent the applicant from succeed-Refuge Assur. Co. [1912] S. C. 37, 49 Scot. ing if she can prove that it was an injury by accident within the meaning of § 1, subsec. 1."

It may be held that a delay in giving notice for about eight months is by mistake where the workman was told by a doctor that the pain which he suffered was due to muscular rheumatism, and not to injury. Ellis v. Fairfield Shipbuilding & Engineering Co. [1913] S. C. 217, [1913] W. C. & Ins. Rep. 88, 6 B. W. C. C. 308, 50 Scot. L. R. 137, [1912] 2 Scot. L. T. 485.

79 Where an employee did not regard his injury as so serious as his doctor's advice should have led him to suppose, and he did not intend to make any claim under the act if his recovery had been as satisfactory as he expected, he is not barred from obtaining compensation, although he failed to give notice for five months after his injuries, and the employers were preju

L. R. 67, 5 B. W. C. C. 522.

Delay may be found to be due to reasonable cause where the workman was aged and crippled, and feared that if he applied for compensation the insurance company would not permit the employers to retain him, and he did give notice shortly after he found that he would never be able to work again. Breakwell v. Clee Hill Granite Co. (1911) 5 B. W. C. C. (Eng.) 133.

A county court judge is justified in finding that a workman had reasonable cause for failing to give notice of an injury which resulted in a rupture, where, although he was aware at the time that he had received some form of an injury, did not think that it was serious, and, as a matter of fact, did not lose an hour's time for months after receiving such injury, and did give notice as soon as he realized that the injury was of a serious character. Zillwood v. Winch