Hogan v Davis Estates Ltd

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1942
• Date: 01 January 1942

Supreme Court

Hogan v. Davis Estates, Ltd.

In the Matter of the Workmen's Compensation Act,1934, and in the Matter of an Arbitration between THOMAS HOGAN, Applicant, and DAVIS ESTATES (IRELAND), LTD., Respondents (1)

Workmen's Compensation - Award - Incapacity of workman - Treatment of partial incapacity as total incapacity - Accident to workman employed as builder's carpenter - Building firms refusing to employ him owing to disability - Probability of obtaining work but for continuing effects of injury - Partial incapacity - Assessment of compensation - Substantial reduction in capacity to work - Whether sufficient material on which to make award - Evidence - Workman seeking employment - Whether statements made by prospective employers to workman as to the reason for not employing him are admissible - Workmen's Compensation Act, 1934 (No. 9 of 1934), Third Schedule, s. 24.

Application on behalf of Thomas Hogan, the applicant in proceedings under the Workmen's Compensation Act, 1934, by way of appeal to the Supreme Court, for an order that the order of the Circuit Court Judge (Judge Davitt) adjourning his application generally, be annulled, and that in lieu thereof an order might be made declaring that the appellant's incapacity be treated as total under s. 24 of the above-mentioned Act, and that the appellant was accordingly entitled to compensation on the basis of total incapacity, and determining the amount of such compensation, or for such other order as to the Court should, in the circumstances, seem meet.

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.

The judgment of the Circuit Court Judge (Judge Davitt) was as follows:—

"The facts of this case, and the interpretation of s. 24 of the Act in regard to them, involve considerable difficulty.

As far as I can understand the section I am prepared to accept the interpretation, submitted by Mr. Hogan, based on the case of Young v. Roche and McConnell Ltd.(1).I think myself that but for the continuing effect of this man's injury it is probable that, in the interval which has elapsed since the accident, he would on occasions have

obtained employment. I am satisfied he made every endeavour to do so.

This difficulty, however, arises. Should I, on the facts of this case, hold that, but for the continuing effects of his injury, the workman would be at this particular moment able to obtain employment as a builder's carpenter? That is a matter of considerable difficulty. I think it comes to this. Before you can say that it is probable that a certain thing will happen there must be more than an even-money chance that it will happen. If that be correct, and I think it is, then I am satisfied that it is not probable that, but for the continuing effects of his injury, this man would be able at this particular moment to obtain employment as a builder's carpenter. I have had a case very close to this on the facts where evidence was given by a number of builders, and I can remember two of them, biggish builders, who normally employ 100 carpenters, who are now down to 40, and another, who normally employed 10, who is down to 2.

In all the circumstances, although it is a very close border-line case, I am not satisfied that this man, if he was not injured in any way, would be in employment as a carpenter at the moment. I am sorry to have to come to this decision. He is partially incapacitated, but as I have no measure of his capacity, I cannot make any order except to adjourn generally."

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

"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...