Dunne v Offaly County Council
| Jurisdiction | Ireland |
| Judgment Date | 23 May 1939 |
| Date | 23 May 1939 |
| Court | Supreme Court |
Supreme Court.
Workmen's Compensation - Accident "arising out of and in the course of the employment" - Accident apparently trivial - Boiling tar falling on workman's lip - Tar wiped off lip and apparently without injury to workman - Scab forming on lip subsequently - Workman incapacitated - Delay in giving notice of accident - Time for giving notice - "As soon as practicable" - Whether notice to be given until workman aware that claim likely to arise - Whether employer prejudiced in his defence by workman's default in giving notice - Evidence - Burden of proof - Commencement of proceedings - Failure to commence proceedings within six months - Whether reasonable to require workman to commence proceedings before incapacitated for one week - "Reasonable cause" - Workmen's Compensation Act,1934 (No. 9 of 1934), s. 28, sub-ss. 1 and 2; s. 31, sub-ss. 1 and 2.
Application to the Supreme Court by the County Council of the County of Offaly by way of appeal from an order of the Circuit Court Judge (Judge Gleeson) made on the 22nd February, 1939, awarding compensation to Denis Dunne under the Workmen's Compensation Act, 1934.
The County Council appealed on the grounds that there was no evidence to support the findings of the Circuit Court Judge that the workman's incapacity was caused by an accident arising out of and in the course of his employment, and that they were not prejudiced in their defence by want of notice, as prescribed by s. 28 of the Act, and also on the ground that the Circuit Court Judge was wrong in law in holding that the failure to commence proceedings within the period of six months, as required by s. 31 of the Act, was occasioned by "reasonable cause" within the meaning of sub-s. 2 of that section.
The facts have been summarised in the headnote and are sufficiently stated for the purposes of this report in the judgment of Sullivan C.J.
On the 10th June, 1938, while D was working for the appellants on repairs to a road, some boiling tar from a tar sprayer fell on his upper lip. He wiped it off, and although he was in pain for some seconds he did not otherwise appear to be affected by the accident, which seemed very trivial. He continued to work until the repairs to the road had been completed, when, there being no further work for him, he was paid off. Subsequently he was again employed by the appellants and remained at his work until the 14th November, when he ceased, owing to an attack of influenza, as a result of which he was confined to bed on 17th November and was incapacitated until 1st December. About a week after the accident a small sore appeared on his lip, a scab formed on it, which fell away after a short time, to be succeeded by another scab, the process being repeated on several occasions, but the condition of the lip did not appear to be serious until the time of his contracting influenza when it had swelled and was becoming very sore. At that time D. consulted a person who had no professional qualifications but who was reputed to have a cure for such ailments, and the latter, being of the opinion that the sore was cancerous, gave him an ointment to be applied to his lip which he used until the 26th January, 1939 when "the sore fell out," leaving a wound which had not healed. Neither written notice of the accident nor an application to the Circuit Court for compensation under the Workmen's Compensation Act, 1934, was served until the 19th January. The Circuit Court Judge found that D. had received personal injuries by accident arising out of and in the course of his employment as a result of which he became incapacitated as from the 1st December, 1938, and that the appellants were not prejudiced in their defence by the want of notice of the accident, and he held that the failure to bring proceedings within the period of six months was occasioned by mistake or other reasonable cause.
Held by the Supreme Court (Sullivan C.J., Murnaghan, Meredith and Geoghegan JJ., Johnston J. dubitante) that there was evidence to support the findings of the Circuit Court Judge.
Observations of Lord Atkinson in Hayward v. Westleigh Colliery Co.,[1915] A. C. 540, at p. 546, applied.
Held further by the Supreme Court that, inasmuch as it was not until the 8th December, that D. had been incapacitated from the injury for the period of one week, it would not be reasonable to require him to institute proceedings before that date, and, as he could not do so without the assistance of a solicitor, his failure to commence proceedings within the statutory period of six months expiring on the 10th December, as required by s. 31 of the Act, was occasioned by "reasonable cause" within the meaning of sub-s. 2 of that section.
Cur. adv. vult.
| Sullivan C.J. :— |
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On the 10th June, 1938, Denis Dunne, the respondent in this appeal, was working for the appellants, the County
Council of Offaly, who were repairing the Portarlington Road. While helping a fellow-workman named McHugh to work a tar-sprayer, some boiling tar fell on his under lip. He wiped it off and although he was in pain for some seconds he did not seem to be any the worse for the accident. McHugh saw him wipe the tar from his face. A few minutes later the Ganger—Martin Young—came on the scene and the respondent told him that he had had a narrow escape and was lucky that he did not get the tar in his eye. The accident seemed a very trivial one. Neither the respondent nor McHugh nor Young attached any importance to it, and Young did not report it to the appellants. The respondent continued to work for the appellants until the work on the Portarlington road was finished and he was paid off, as the appellants had then no further work for him. He is the owner of a small farm on which he lives and...To continue reading
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