Cullen v Clarke

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1964
• Date: 01 January 1964

Supreme Court.

Cullen v. Clarke.

In the Matter of the Workmen's Compensation Acts, 1934-1955, PETER CULLEN, Applicant and Appellant

and

WILLIAM CLARKE, Respondent (1)

Workmen's compensation - Partial incapacity - Claim that such incapacity be treated as total - Evidence - Hearsay evidence - Admissibility - Evidence of efforts to obtain work given by workman - Nature of such evidence - Workmen's Compensation Act, 1934 (No. 9 of 1934), s. 24, sub-s. 1.

Appeal from the Circuit Court.

The applicant, Peter Cullen, appealed to the Supreme Court from the refusal of the Circuit Court Judge (Judge Deale) to treat the partial incapacity of the applicant as total

incapacity under the provisions of s. 24, sub-s. 1, of the Workmen's Compensation Act, 1934.

The facts have been summarised in the head-note and appear fully from the judgment of Kingsmill Moore J., post.

Sect. 24, sub-s. 1, of the Workmen's Compensation Act, 1934, provides:—

"(1) Subject to the provisions of this section if a workman, who has so far recovered from the injury as to be fit for employment of a certain kind, has failed to obtain employment and it appears to the Court either—

"(a) that, having regard to all the circumstances, it is probable that the workman would, but for the continuing effects of the injury, be able to obtain work in the same grade in the same class of employment as before the accident; or

"(b) that his failure to obtain employment is a consequence, whether wholly or mainly, of the injury,

"the court shall order that the workman's incapacity shall be treated as total incapacity resulting from the injury for such period, and subject to such conditions, as may be provided by the order, without prejudice, however, to the right of review conferred by this Act."

C. was a builder's labourer who had a finding of partial incapacity in his favour. He applied to the Circuit Court sitting at Wicklow to have such partial incapacity treated as total under s. 24, sub-s. 1, of the Workmen's Compensation Act, 1934. At the hearing of his application in the Circuit Court he gave evidence of several unsuccessful efforts to obtain work. The Circuit Court Judge ruled that the applicant was not entitled to quote statements made to him by prospective employers if it were sought to rely on the truth of those statements as showing the reasons why the prospective employers refused to give him employment. He held that accordingly the applicant had failed to bring his claim within the provisions of s. 24, sub-s. 1, of the Act of 1934 and he dismissed the application. On appeal by the applicant to the Supreme Court it was

Held by the Supreme Court (Maguire C.J., Lavery, Kingsmill Moore, Ó Dálaigh ó dálaigh and Maguire JJ.) 1, that under s. 24, sub-s. 1 (a), where the workman's record of work is good in the past and there has been no notable slump in the labour market a judge is entitled to hold that the workman's partial incapacity should be treated as total in the appropriate circumstances;

2, Under s. 24, sub-s. 1 (b), if the workman seeks to give evidence of the reasons why the prospective employer would not employ him that would be hearsay evidence and so would not be admissible.

The Court accordingly ordered that the case should be remitted to the Circuit Court Judge for consideration as to whether the workman had brought himself within the provisions of para. (a) or para. (b) of sub-s. 1 of s. 24, liberty being given to either side to adduce further evidence consonant with the views expressed by the Supreme Court as to what evidence was admissible.

Cur. adv. vult.

Maguire C.J. :—

I have read the judgment which will be delivered by Mr. Justice Kingsmill Moore and I agree with it.

Lavery J. :—

I had an opportunity of reading the judgment which Mr. Justice Kingsmill Moore is about to deliver and I also agree with it and in particular with the order he proposes. I wish, however, to mention two reservations which do not, I think, conflict with anything in his judgment but which should, in my opinion, be made clear.

The words in s. 24, sub-s. 1 (a), of the Workmen's Compensation Act, 1934, the meaning of which I wish to discuss, are:—

"Work in the same grade in the same class of employment as before the accident." I am not satisfied that the words,"before the accident," should be restricted to be held to mean "immediately before the accident."

If that was the intention, the appropriate words should have been "at the time of the accident."

Where a workman is a skilled tradesman who has been continuously employed in his particular trade, no difficulty arises, but it may be different in the case of a workman such as the applicant. What I mean will appear from what I have to say on the second point. Secondly, it appears to me that the applicant's employment, described as that of a"builders' labourer," may not be employment of a kind sufficiently definite to be considered a grade in a particular class of employment so as to limit enquiry by the Circuit Judge when dealing with s. 24, sub-s. 1 (a), to the employment available as a builders' labourer only. This was not gone into in evidence and is not raised on the appeal for decision by this Court and all that I wish to put on record is that it is in my opinion a question requiring consideration whether the work of a builders' labourer—which may, I suppose, be described as unskilled work, though this also may call for enquiry—is to be distinguished from general labouring work, such as on road work—either repair of roads or construction of new roads or diversion of existing roads— in factories, in agriculture and generally.

In my opinion the Circuit Judge in dealing with the case now to be remitted to him will have to consider these matters.

Kingsmill Moore J. :—

This is an appeal from the refusal of the Circuit Court Judge to treat the partial incapacity of the workman as total incapacity, under the provisions of s. 24 of our Workmen's Compensation Act, 1934. The workman, while employed as a builders' labourer, sustained injuries which left him with two flat feet and minor disabilities in his left foot. He walks with a stick. It is admitted that he has so far recovered as to be fit for various forms of light work, and it is not maintained that he is able as yet to resume the work of a builders' labourer, or any employment of a heavy nature. By an order of the 24th April, 1958, the learned Judge found the workman to be partially incapacitated, and adjourned the case for the purpose of production of evidence of what light work the applicant could obtain. The case was further heard on the 8th July, when the applicant's claim to have his partial incapacity treated as total was also considered. The Judge found that the applicant, having taken all reasonable steps to obtain employment, failed to obtain employment, but that there was no evidence upon which to assess compensation for partial incapacity: he refused to make an order under s. 24, and adjourned further consideration with liberty to either party to apply.

At the hearing, the applicant gave evidence that he had applied for work to the manager of the copper mines at Avoca, to the Forestry Branch at Shelton Abbey, to the assistant county surveyor for Wicklow, to various farmers, and to the foreman in charge of building a new, and nearly completed, school at Avoca. He sought to give...