[HOUSE OF LORDS.]

AND

Master and Servant - Employer and Workman - Compensation for Injuries by Accident - Claim for Compensation - No Demand for specific Sum - Workmen's Compensation Act, 1897 (60 & 61 Vict. c. 37), s. 2.

In making a claim for compensation under the Workmen's Compensation Act, 1897, it is not necessary to specify any sum.

Former authorities and dicta to the contrary effect overruled: perLord Atkinson and Lord Shaw of Dunfermline, they proceeded on a misunderstanding of dicta in Powell v. Main Colliery Co., [1900] A. C. 366.

Decision of the Court of Appeal (not reported) reversed.

APPEAL from a decision of the Court of Appeal.

The circumstances of the appeal are fully stated in the judgment of Lord Mersey.

April 11, 13. Cavanagh and E. E. Humphrys, for the appellant. The Act does not require that the sum claimed should be specified. Notice of accident and claim for compensation are separate stages in the proceedings. A notice must give full particulars in writing. A valid claim may be made by word of mouth: Lowe v. Myers. (1) The cases on which the decision of the Court of Appeal was based were founded on a misapprehension of Powell v. Main Colliery Co. (2) In that case the sum claimed was specified and the point here involved was not in issue. But unwarrantable inferences have been drawn from the language used by noble and learned Lords. There is not a word in the Act about specifying the amount of the claim. It might not be possible to do so until the extent of the injury was ascertained. The Act provides a scale and the employer generally knows as much as the workman injured. The decisions in Scotland and Ireland which the Court of Appeal followed were wrongly decided: Bennett v. Wordie (3); Park v. Maver (4); Kilpatrick

(1) [1906] 2 K. B. 265.

(2) [1900] A. C. 366.

(3) (1899) 1 F. 855.

(4) (1905) 43 Sc. L. R. 191.

v. Wemyss Coal Co. (1); Marno v. Workman, Clark & Co. (2) The Court of Appeal did not follow its own decision in Linklater v. Webster. (3)

The Court of Appeal exceeded its jurisdiction in ordering a stay of execution. It is for the county court judge alone in a proper case to make such an order. If a sum ought to have been mentioned, that requirement was waived.

Sanderson, K.C., and Shakespeare, for the respondents. There has been no waiver. Notice and claim are no doubt distinct. That is in the respondents' favour. Otherwise a mere demand would be enough. Powell v. Main Colliery Co. (4) is in the respondents' favour, though this precise question was not involved. The Lord Chancellor expressly approved Bennett v. Wordie (5) and Marno v. Workman, Clark & Co. (2); and Lord Davey was content to adopt Romer L.J.'s judgment, in which the requirement of a fixed sum was stated. The decisions cited from Ireland and Scotland are consistent and sound.

No reply was called for.

The House took time for consideration.

June 9. LORD LOREBURN L.C. My Lords, there is no doubt that the decision of the Court of Appeal in this case has support from earlier authorities, though I do not think that any deliberate opinion has been expressed in this House, or even that the precise question has been raised. Your Lordships would, however, at all times, pay the utmost respect to these authorities; but I confess that they do not convince me, and they seem to proceed rather upon considerations of public policy than upon a strict interpretation of the Act of Parliament.

This Act says that "the claim for compensation" must be made within six months of the accident. It has been held in the Court of Appeal that unless the amount claimed has been specified there has been no "claim for compensation." I cannot see why it should be so. There is no such provision in the Act itself; I mean in its actual terms. If a man says, as admittedly

(1) (1906) 44 Sc. L. R. 255.

(2) (1899) 33 I. L. T. 183.

(3) (1904) 6 Minton - Senhouse, C. C. 50.

(4) [1900] A. C. 366.

(5) 1 F. 855.

the appellant did say, "I claim compensation," why are we to conclude that he did not so claim?

The reasoning for the respondents is that, unless a sum is named, the employer is deprived of an opportunity of settling the claim, and so avoiding proceedings under the Act. Surely, if he wants to know, he can ask the question, or he can make an offer himself. Perhaps the workman would answer, especially if he gave the notice immediately after the accident, that he cannot tell, until a little time has elapsed, what degree of injury he has sustained. If the Act had imposed upon a workman the duty of specifying the amount which he demanded when making the claim, it might have been thought unfortunate, because it would often make the workman ask, as a matter of prudence, for the maximum he could possibly recover. But I forbear from speculating what it would have been advisable for the Act to say. It is enough that the Act does not say the amount is to be specified, and, with all respect, we must construe it as it stands.

In my opinion, therefore, this appeal succeeds. I will add that, even if it were necessary to specify the amount, my present view is that the respondents waived that particular. But I should not so decide without further consideration, and the point does not arise in the view which I believe your Lordships take of the Act itself.

LORD ATKINSON. My Lords, in this case, which was under the Workmen's Compensation Act of 1897, the county court judge has found, amongst other things, (1.) that verbal notice of the accident was given by the workman to one Devereux, the manager of the works in which he (the appellant) was employed; (2.) that this notice was not formal in character; and (3.) that the want of a formal notice did not prejudice the employers in their defence.

It was not contended, it could not be contended successfully, that there was not abundant evidence in the case to sustain these findings.

The county court judge further found that the appellant made a claim for compensation verbally to the same Devereux, not,

however, stating the precise sum he claimed in moneys numbered, or in any other way specifically fixing it. This finding, like the other, is justified by the evidence. And Devereux himself proved that he had informed his employers of all that the appellant had said to him. It must be taken, therefore, that the appellant's employers were made aware, in a manner so specific as to enable them to make their defence, that the appellant had met with an accident in their works, and that he had claimed compensation in respect of it. So much is clear. It is not suggested that the appellant's employers or any person on their behalf ever made any inquiry from the appellant or any one who represented him as to what was the amount or nature of the compensation he claimed. It is, on the contrary, proved by the respondents' witnesses that the appellant's solicitor, one Broughton, since deceased, called upon the manager of the respondents at Carlisle, one Stubbs by name, for the purpose of making a claim on behalf of the appellant, and that Stubbs, though he "knew the appellant had had an accident," would not allow Broughton to discuss the case with him. And it is found by the county court judge, after hearing Stubbs, whom he considered a most unsatisfactory witness, that in his (the judge's) belief Broughton had on this occasion in fact made a "definite" claim for compensation on the appellant's behalf. It is not clear what is meant, in this connection, by the word "definite." It may be that it does not mean that Broughton stated the amount claimed in money. Two questions, therefore, emerge for decision - first, the general question, whether it is necessary that the amount of compensation should be stated in the claim, in order to make it a valid claim within the provisions of the 2nd section of the Act of 1897 (60 & 61 Vict. c. 37), and, second, the question whether the appellant was relieved from the obligation of stating the amount of compensation by reason of the conduct and action of the respondents' agent Stubbs.

It has been established by the authorities, and is not disputed, that the claim referred to in this section need not be in writing. A verbal claim is admittedly sufficient. It has also been established by authority and not disputed that the claim mentioned in this section is like the notice of the accident therein also

mentioned, a preliminary to the "proceedings for the recovery" mentioned in s. 2, and not part of the pleadings, if such they can be styled, in these proceedings. It is, to use the words of the Master of the Rolls in the present case, "something antecedent to and apart from the formal application required by the statute."

This was the point decided in your Lordships' House in the case of Powell v. Main Colliery Co. (1) The present point was not raised, and could not have been raised, in that case, for the simple reason that there the amount of compensation was precisely stated in the written claim; and I do not think that anything was said by any of the noble Lords who took part in the decision which, fairly construed, amounted to an expression of opinion on the point now raised. I should have myself thought that it was plain, upon the face of this statute, that the object of requiring notice of the accident to be served was to protect the employer from exaggerated or unfounded claims. Hence the requirement that the full particulars should be given, the right to have the workman examined (s. 1, sub-s. 3, of the First Schedule), and the proviso in s. 2, sub-s. 1, relieving the workman from the consequence of a defect or inaccuracy in the notice where the employer is not thereby prejudiced in his defence. And I should have thought it was equally plain that the main if not the only object of requiring the claim for compensation to be made within six months from the accident is to protect the employer from stale demands, to warn him that a claim is about to be made against him, and thus put him upon his guard, just as notice of action was designed to do the same thing in the case of those officials and public bodies who were under many statutes entitled to receive it. A notice of the accident does not involve a claim for compensation, or imply that such a claim will necessarily be made; for this amongst other reasons, that though the accident may occur, and notice be given of it as soon thereafter as practicable, no compensation will be recoverable unless the workman is by it incapacitated for a period of two weeks from earning full wages (s. 1, sub-s. 2 (a)).

(1) [1900] A. C. 366.

Your Lordships have been referred to several cases decided in England, Scotland, and Ireland on this section of the Act of 1897. I have read the judgments delivered in each of them most carefully, and, with the most profound respect for the learned judges who decided them, I am unable to find in these judgments any line of reasoning convincing to my mind that the statement of the amount of the compensation claimed would have the powerful influence attributed to it in leading to a settlement of the workman's demand, or any explanation why, if this statement be an element of such potency, this statute, evidently framed to encourage settlement, did not expressly provide that the amount should be stated.

It does not appear to be a final and binding statement of the amount sought to be recovered. The amount claimed in the request for arbitration prescribed by r. 8 of the Rules of 1898 need not be the same. And the omission to name the amount is not mentioned in any of the rules or forms as a good ground of defence, though the omission to make the claim within the time prescribed is distinctly set forth in form 8, Appendix N, as a good ground of defence. It is scarcely conceivable that this would be so if the mention of the amount was a vital matter.

In all those cases in which the results of the accident have not fully developed themselves, or are not likely to develop themselves, within the period of six months from the date of the accident, and there are many such, it is obvious that the workman, if he is to state the amount of compensation, must, in self-defence, claim the maximum recoverable. Even where there is a doubt as to the probable duration of his incapacity to earn full wages, he must either do this or delay the making of the claim till the last moment - courses of action which would, I think, if anything, tend rather to impede than promote settlements.

The special advantage which the statement of the amount is said to possess is, according to the judgments of the learned judges in the Court of Appeal and of the other judges to which they refer, that it gives the parties "an opportunity to agree"; that when it is stated, if the master accedes to it, there is no dispute. I should a priori think that the occasions upon which

the employer gives everything he is asked to give are not very numerous. I should suppose that injured workmen, like most people who have a cause of action, do not confine their demand to the precise sum they are entitled to recover or would be content to receive, or the sum that the persons from whom they claim it would be willing to give. Such moderation in measuring the quantum of the relief they seek is not to be expected from them more than from others.

But if the amount be not stated, what is to prevent the employer from asking his workman how much he will take to settle, or from making the latter an offer? He has had all the information which the notice of the accident affords. Possibly he has availed himself of the provision in the First Schedule already mentioned and has had the workman examined. He is in a position to form a judgment on what is the amount which it is right or prudent for him to pay. It might, no doubt, be some advantage to him to have the amount stated in the claim. But, on the other hand, in cases such as I have already indicated, it would undoubtedly greatly embarrass the workman to be obliged to quantify, as it were, the redress he seeks, to force him in effect to fix by anticipation the duration of his incapacity and appraise the value in money of his possible sufferings. What I fail altogether to realize is that the advantage to the employer is so great as to render it imperative, in order not to defeat the purpose and object of the statute, to interpolate into its provisions words not to be found there, the more especially as the making of a claim serves the main and paramount purpose of protecting the employer against stale demands, even though no amount be mentioned. The essence of this requirement is the element of time.

The provisions dealing with the notice of this accident shew that where it is necessary for the protection of the employer that he should be in possession of full and detailed particulars the giving of those particulars is expressly enjoined. If, in the estimation of the Legislature, the statement of the amount claimed possessed all the virtues now attributed to it, I confess it seems to me incredible that it would not be dealt with as the notice of the accident is dealt with, and the statement of the

amount expressly enjoined. I find nothing in the letter or spirit of the statute which requires that the amount should be stated, and on this ground I am of opinion that the judgment of the Court of Appeal is erroneous and should be reversed, and this appeal allowed with costs.

It is therefore unnecessary for me to consider the second point, namely, whether Stubbs by his action did not relieve the appellant from stating the amount of compensation if that were essential. The inclination of my opinion, however, is that it did relieve him from doing so.

Little stress was laid in the argument before your Lordships on the effect of the use of the definite article "the" before the word "claim," instead of the indefinite article "a." In my opinion there is nothing in this point.

LORD COLLINS. My Lords, I concur.

LORD SHAW OF DUNFERMLINE. My Lords, I agree with the judgments which have been delivered.

My Lords, there is no doubt that the Court of Appeal in England and the Court of Session in Scotland have found themselves lately confronted by a body of authority, and the state of that authority has produced a certain amount, not inconsiderable, of embarrassment. The Second Division of the Court of Session on May 16, 1899, pronounced a judgment in the case of Bennett v. Wordie & Co. (1), and though there were various grounds of that judgment, still it cannot be denied that a substantial ground was expressed by the Lord Justice-Clerk in the following terms: "A 'claim' in the sense of the statute means asking a particular sum as compensation for the injuries received, not merely intimating that the undertakers will be held liable - that is to say it is not in my opinion merely a general demand for compensation, but the taking of proceedings for making that demand effectual."

That was the state of the law in Scotland as decided by Bennett v. Wordie & Co. (1), but, my Lords, that state of matters there did not last very long, because upon June 11, 1901, in the

(1) 1 F. 855.

case of Fraser v. Great North of Scotland Ry. Co. (1), the same point also arose, and that most distinguished judge the late Lord President Kinross uses language of a very different complexion; because he says, with reference to the same provision of the Act, "The Act does not require, in terms at all events, that the amount of compensation shall be stated in the claim, but merely that a claim for compensation with respect to the accident shall have been made." And both he and Lord Kinnear expressly reserved their opinion upon that point.

My Lords, the situation in Scotland was therefore this: that they had decisions apparently and to some extent in conflict; and under the Workmen's Compensation Act of 1897 an appeal to this House was precluded. In those circumstances the best was done which could be done, namely, seven judges were called together to decide the question; and that decision took place in December, 1906, in the case of Kilpatrick v. Wemyss Coal Co. (2) But, my Lords, when those seven judges were convened to decide that point, they held it to have been concluded by the authority of a judgment in this House, and that was the judgment in the case of Powell v. Main Colliery Co. (3)

My Lords, I am bound to say that I have the greatest difficulty in seeing how Powell v. Main Colliery Co. (3) can be held as a decision affecting the real issue in this case. The issue here is this: When a claim for compensation is made, must the claim not only be made, but must it be quantified? The question is, shall damages be quantified, and if not, is there or is there not a claim at all?

But, my Lords, in the very forefront of the case of Powell v. Main Colliery Co. (3), and brought out purposely by Lord Halsbury, who as Lord Chancellor delivered the leading judgment, the notice was quoted in extenso; and the notice leaves no room whatever for the point in this case or for the point in the previous Scotch cases, because the notice was in these terms: "Take notice that I claim the sum of 15s. per week from the 4th day of January, 1899." Accordingly, my Lords, in the case of Powell v. Main Colliery Co. (3) the question as to the need for

(1) (1901) 3 F. 908.

(2) (1907) S. C. 320; 44 Sc. L. R. 255.

(3) [1900] A. C. 366.

quantification in the notice could not possibly arise, because, as I say, upon the forefront of the notice the claim was already quantified at 15s. a week.

It is quite true that in the course of Lord Halsbury's judgment certain reference is made, apparently with approbation, to the case of Bennett v. Wordie. (1) And there being that obiter dictum, in that situation the seven judges in the case of Kilpatrick v. Wemyss Coal Co. (2) decided the question as concluded by the judgment of this House in Powell v. Main Colliery Co. (3) My Lords, there was no judgment of this House in the sense accepted by the seven judges in the Court of Session; but so far has that acceptance, in a wrong sense, of the judgment in Powell v. Main Colliery Co. (3) gone, that this present case now under appeal rests very largely upon the adoption by the Court of Appeal of the views of the Scotch judges in the Kilpatrick Case (2) as to the decision in Powell v. Main Colliery Co. (3)

Now, my Lords, as I have already shewn, that judgment did not and could not possibly rule the point in issue in this case; and I accordingly hold that I am forced to consider the question, not from the point of view of authority, but from the point of view of principle. Now the Master of the Rolls in this case cites with approbation the judgment of Lord Pearson, who, agreeing with Lord Dunedin, says this - and this is the principle upon which the judgment in the Scotch case (apart from authority) appears to depend - "I should say that, above all, the statute regards it as important that the parties should have an opportunity to agree, and so to save all the delay and expense of 'proceedings.'" My Lords, I have given, like my noble and learned friend Lord Atkinson, the most careful consideration to that line of reasoning; and, my Lords, I cannot find anything convincing to my mind in it. Although a claim be not quantified, there appear to me to be all the same opportunities, equal in strength, for a man, when he merely makes his claim, having his employer meeting him; the employer can then, in the very same way in which he could have done if the claim had been

(1) 1 F. 855.

(2) (1907) S. C. 320; 44 Sc. L. R. 255.

(3) [1900] A. C. 366.

quantified, meet the workman and say "Well, how much is the compensation to be?"

My Lords, if principle is to be appealed to, there are some reasons why the claim might not necessarily be quantified. What are those? Let me mention only two. The first of those reasons is, that necessarily before the time expires there are, in many cases, the greatest uncertainties with reference to the result of the injuries, and a prognosis estimable in money would be the merest and vaguest conjecture. In the second place, the statute prevents in a certain sense any wild claim, because it itself provides a maximum. In those circumstances there seems to be no reason whatever on principle for compelling the initial quantification of a claim. To hold that the words of the statute "the claim for compensation" must mean "the claim for a specific sum of money by way of compensation" appears to me to make an unjustifiable addition to what the Act prescribes. In the present case it is clearly found that the appellant although not naming a sum did in fact make a claim for compensation within the statutory limit of time, and he thus, in my opinion, completely satisfied all that the Act required.

My Lords, I have traversed the authorities and discussed the principle at such length because of the great care manifested both in the Court of Appeal and in the Court of Session on the topic. I add that I agree, if I may respectfully do so, with every word of the analysis made by my noble and learned friend Lord Atkinson of the statute in this particular respect.

LORD MERSEY. My Lords, the only question argued on the hearing of this appeal was whether the appellant had made a "claim for compensation" sufficient in law to comply with the requirements of the Workmen's Compensation Act, 1897. The learned county court judge decided that he had, and gave judgment for the appellant. The Court of Appeal came to the conclusion that he had not, and entered judgment for the respondents.

The facts are quite simple. While working for the respondents the appellant lost the sight of one of his eyes by an accident within the meaning of the statute. What happened

subsequently is stated by the respondents in paragraph 4 of their case, "the appellant within six months of the date of the alleged accident .... said to the works manager 'I claim compensation' .... but the appellant did not at any time specify the amount of his claim."

The question is whether such a claim comes within the meaning of s. 2, sub-s. 1, of the Act, which provides that proceedings for the recovery of compensation shall not be maintainable unless "the claim for compensation" has been made within six months of the happening of the accident. The fault which the respondents find with the claim is that it does not name the sum of money for which it is made; and it is said that this fault is fatal. My short answer to this contention is that the Act contains no words which require the workman to mention a sum of money.

But then it is said that the Act of Parliament cannot be administered properly unless such words be read into it; for that it contemplates an opportunity being afforded to the master of settling the claim, and so avoiding arbitration proceedings, and that such opportunity is not afforded unless the workman says how much he wants. This reasoning does not satisfy me. It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do. Here I see no necessity at all for introducing the words.

The absence from a claim for compensation of a named sum does not prevent the workman from saying how much he will accept, nor does it prevent the master from saying how much he will give. Preferring a claim for compensation is by no means a necessary preliminary to arriving at an agreement as to the amount to be paid. What the workman is willing to take, or the master willing to pay, may be something quite different from the measure of compensation. Many considerations may induce a man to take less or a master to give more than "compensation." If the parties fail to agree, or do not try to agree, then it is that compensation has to be fixed; and the tribunal to fix it is the county court. Why should the workman undertake the task? Why may he not tell what is probably the truth, and say

"I cannot fix any sum, for I am not skilled enough to form an opinion as to the nature of my injuries, or clever enough to measure them in money"? There is, in fact, no good reason why he should not take up this position.

It is said, however, that the case is settled by authority, and reference is made to a number of cases, among which is the Scotch case of Kilpatrick v. Wemyss Coal Co. (1) In that case it was undoubtedly held that the claim for compensation to be good must mention the sum claimed. But it will be noticed that the decision is largely based on dicta to be found in Powell's Case, decided in this House and reported in [1900] A. C. at p. 366. Those dicta, however, were obiter, and I do not think they bind your Lordships' House, even if they go to the length suggested.

For these reasons I come to the conclusion that there is nothing in the Act of Parliament, and nothing in the authorities, which constrains your Lordships to arrive at a decision which, if arrived at, would deprive the appellant of the remedy to which otherwise he is undoubtedly entitled.

I wish further to add that, in my opinion, the respondents by their conduct, as appearing from the evidence of their own witnesses, dispensed with the naming of any sum by the appellant, and thereby estopped themselves from objecting to the form of the claim.

LORD LOREBURN L.C. My Lords, I am afraid that, owing to a mistake, my noble and learned friend Lord Halsbury has not been apprised that this case was coming on for consideration today, but as the parties were here we did not think it desirable to put them to the expense of coming again.

Solicitors: Thwaites & Thompson, for J. B. Beckton, Carlisle; Indermaur & Brown, for Blackburn & Main, Carlisle.

(1) (1907) S. C. 320; 44 Sc. L. R. 255.