Later decisions that cite Thompson v Goold & Co
Lorp Cotiins. My Lords, I concur. Lorp Suaw or Dunreruuine. 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. A.C. AND PRIVY COUNCIL. 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 com- plexion ; 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. (8) My Lords, I am bound to say that I have the greatest difficulty in seeing how Powell v. Main Colliery Co.(8) 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. (8), and brought out purposely by Lord Halsbury, who as Lord Chancellor delivered the leading judg- ment, 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. (8) the question as to the need for (1) (1901) 3 F. 908. 255. (2) (1907) S. C. 320; 44 Se. L. RB. (3) [1900] A. O. 366. 417 H. L. (E.) 1910 THOMPSON YX GOOLD & Co, Lord Shaw of Dunfermline. 418 HOUSE OF LORDS [1910] H.L.(£.) quantification in the notice could not possibly arise, because, as i910 Isay, upon the forefront of the notice the claim was already Tompson Quantified at 15s. a week. Sane It is quite true that in the course of Lord Halsbury's judgment Stora certain reference is made, apparently with approbation, to the Dunfermline. cage "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. (8) 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 Collkery Co. (8) 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. (8) 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 init. 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. 856. (2)f(1907) S. C. 320; 44 Sc. L. R. 255. (3) [1900] A. C. 366. A. C. AND PRIVY COUNCIL. 419 quantified, meet the workman and say ' Well, how much is the H.L. (B.) compensation to be?" 1910 My Lords, if principle is to be appealed to, there are some pyompsox reasons why the claim might not necessarily be quantified. What are those? Let me mention only two. The first of those ee reasons is, that necessarily before the time expires there are, in Dunfermline. 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 pro- vides 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. Ladd 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. (oh Gooup & Co. Lorp 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 judg- ment 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 respon- dents the appellant lost the sight of one of his eyes by an accident within the meaning of the statute. What happened 420 H. L. (E.) 1910 —— THOMPSON %. GcoLD & Co. Lord Mersey. HOUSE OF LORDS £1910] 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 main- tainable 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 asum 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 A. C. AND PRIVY COUNCIL. 421 "T cannot fix any sum, for I am not skilled enough to form an H.L.(E) opinion as to the nature of my injuries, or clever enough to 1910 measure them in money''? There is, in fact, no good reason pyompson why he should not take up thi: ition. | f y ot take up this position Pvc ery 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 entitied. 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 Mersey. Lorp Lorresurn 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 to- day, but as the parties were here we did not think it desirable to put them to the expense of coming again. Order of the Court of Appeal reversed and award of Judge Steavenson restored with all costs below ; the appellani's costs here to be wpon the pauper scale. Lords' Journals, June 9, 1910.