Kenny gh v Alliance and Dublin Consumers' Gas Company

• Jurisdiction: Ireland
• Judgment Date: 09 December 1947
• Date: 09 December 1947
• Court: Supreme Court

Kavanagh v. Alliance and Dublin Consumers' Gas Co.

In re Workmen's Compensation Act, 1934; THOMAS KAVANAGH

Applicant

and

ALLIANCE AND DUBLIN CONSUMERS' GAS COMPANY,Respondents (1)

Supreme Court

Workmen's compensation - Whether accident arising out of and in the course of employment - Work carried out by respondents in vicinity of work being carried out by employees of other employers - Huts provided by respondents and other employers for convenience of their respective employees - Accident to workman while using other employers' hut for his own purposes during midday break - Voluntary payments by respondents - Receipts stating"having elected to take compensation . . . for the accident I met with when engaged in" respondents' employment - No judgment or registered agreement - Whether any binding admission of liability by respondents - Workmen's Compensation Act, 1934 (No. 9 of 1934), ss. 15, 36.

Applicant was one of a number of workmen in the employ of the respondents who were engaged in examining gas mains in a public roadway on the 15th July, 1943. Workmen employed by the Dublin Corporation were at the same time engaged in work connected with sewers laid in the said roadway. A hut was provided on the roadway by the respondents in which their workmen's tools might be kept and in which their workmen might shelter during the interval for their mid-day meal. A similar hut had been provided by the Corporation for the use of their workmen, the distance between the two huts being 400 yards. At the midday break the applicant and other workmen of the respondents had his lunch at the hut provided by the Corporation, and afterwards rested beside a cement dump, the property of the Corporation. While so resting some bags of cement fell from the dump upon him and caused serious injuries. He received two payments of compensation, and put his mark to a receipt in respect of them. Subsequent payments were made to hie wife. Receipts signed by her, as well as those marked by the applicant, recited that he, "having elected to take compensation under the Workmen's Compensation Acts, 1925 to 1940," agreed to accept during total disablement the weekly sum of 37s. 6d. in satisfaction of the compensation payable by the respondents in respect of the accident. On the 4th November, 1943, the respondents discontinued the said weekly payments, and the applicant commenced proceedings against the respondents for compensation under the Workmen's Compensation Act, 1934, and the Circuit Court Judge, while finding that the accident did not arise out of and in the course of the employment, held that he must, on the authority of Toner v. Dublin Trawling Ice and Cold Storage Co.[1945] I. R. 459, hold that the said payments constituted an implied admission of liability, and awarded him compensation at the rate of 37s. 6d. per week. The respondents appealed to the Supreme Court.

Held, by the Supreme Court (Maguire C.J., Murnaghan and Overend JJ.; Black and Martin Maguire JJ. dissenting) that the payments of compensation, made in the circumstances in which they were made, constituted a binding admission of liability, and that the Circuit Court Judge should, therefore, have excluded evidence to show that the accident did not arise out of and in the course of the employment.

The Court, accordingly, dismissed the appeal, but directed that the Circuit Court Judge's finding that the accident did not arise out of and in the course of the employment should be set aside.

Walsh v. Electricity Supply Board [1944] I. R. 222 applied; Toner v. Dublin Trawling Ice and Cold Storage Co.[1945] I. R. 459 discussed.

Appeal by the respondents, the Alliance and Dublin Consumers' Gas Company, from an order of Judge Davitt (now Mr. Justice Davitt), sitting in the Dublin Circuit Court. dated the 23rd July; 1945, awarding the applicant, Thomas Kavanagh, compensation under the Workmen's Compensation Act, 1934, at the rate of £1 17s. 6d. per week against the respondents.

The facts are set out in the judgment of Judge Davitt in the Circuit Court, which was as follows:—

This is an originating summons brought by Thomas Kavanagh under the provisions of the Workmen's Compensation Act, 1934, to recover compensation by weekly payment at the maximum rate of £1 17s. 6d., as increased by Emergency Powers Order, in respect of injuries sustained by him while in the employment of the respondents on the 14th July, 1943. The applicant is a workman, within the meaning of the Act, and is totally incapacitated as a result of his injuries. The respondent Company deny liability on the grounds that the accident which resulted in the applicant's injuries did not arise out of and in the course of his employment. This is the only material issue raised by the defence. The facts I find to be as follows:—

At the material date the applicant was a workman, within the meaning of the Act, employed by the respondents as a labourer. He was engaged with other workmen of the respondents in examining joints of the gas mains, for which purpose openings had been made in the public roadway which runs alongside the Royal Canal from Blacquiere Bridge to Cross Guns Bridge. Workmen employed by the Dublin Corporation had also made openings in the same stretch of roadway for the purpose of executing some work in connection with the sewers. The applicant had been working there some six days before his accident. The Gas Company's men had a hut in which to keep their tools, and in which they could shelter and have a fire at which to make tea during the interval, from 12.30 p.m . to 1 p.m., when they ceased work to take their midday meal. The Corporation workmen also had a hut which they used in similar fashion. They ceased work from 1 p.m. to 2 p.m. These huts were some 400 yards distant from each other. The applicant was working at two openings in the roadway which were much closer to the Corporation hut than to the Gas Company's hut. The distance from where he was working to the Corporation hut has been variously estimated at 12, 17, and 50 yards. Situated between the place where he was working and the Corporation hut was a dump of cement contained in bags, piled and covered by a tarpaulin. This dump belonged to the Corporation. At the midday break the applicant and some of his fellow-workmen, who were completely free to go where they liked during the cessation of work, found that the Corporation hut was much more convenient than their own for the purpose of taking their meal, and resorted thither daily for that purpose. On the 14th July, 1943, the applicant and some of his fellow-workmen during the midday cessation of work had their lunch at the Corporation hut as usual. After his meal he sat down beside the cement dump for a rest, that being the cleanest place he could find. This dump was placed on a portion of the public way between the terminus of the branch of the Royal Canal and the Public Library, as shown upon the map put in evidence on behalf of the applicant. While he was sitting there some bags of cement fell from the dump on top of him, causing the injuries the subject matter of these proceedings. He was taken to the Mater Hospital where he was detained for a period of nineteen weeks.

While the applicant was in the Mater Hospital Mr. Hennessy, the mains superintendent of the respondents, visited him on the 30th July with, to quote the applicant,"a cheque for workmen's compensation." The applicant was unable to sign any receipt, but put his mark to a receipt for two payments. It was then agreed, I am satisfied, that future payments should be made to the applicant's wife. I shall deal with the form of the receipts later. Payments were made weekly to the applicant's wife up to and including the week ending the 4th November, 1943, when payments ceased. On the 6th November the applicant left hospital, and on the 8th he called upon Mr. Johnson, an official of the Gas Company, to enquire why payments were being stopped. He was told that it was because some action was pending. The applicant said he knew of no action, and asked could payments not be continued by way of loan. This was refused, and no money has since been paid to him. While he was in hospital he was visited by a Mr. Billings, whom, he thinks, was a draughtsman in the employment of the respondents, who asked him if he was taking any action. The applicant replied that he knew nothing of any action. These remarks about the taking of an action appear to refer to proceedings contemplated at one time by Mr. Boyle, solicitor for the applicant, who considered that some action might lie against the Corporation.

The receipts which have been referred to consist of two sheets each headed: "Workmen's Compensation Acts, 1925 to 1931," and, following the name and address of Messrs. Drysdale, Underwriters at Lloyds, contained the following form of receipt:—

I, Thomas Kavanagh, B517, having elected to, take compensation under the Workmen's Compensation Acts, 1925 to 1940, hereby agree to accept during total disablement the weekly sum of £1 17s. 6d. in satisfaction of the compensation payable by Dublin Gas Company for the accident I met with when engaged in their employment on the 15/7/43.

Signature of injured person." (Blank).

The form of receipt upon the first sheet purported to be signed, as a witness, by J. Hennessy, and was dated the 30th July, 1943. That on the second sheet purported to be witnessed by Geo. Johnson, and was dated the 14th October, 1943. On each sheet, following the form of receipt, is a three-columned schedule, the columns being, in order, headed: "Date of Payment," "Amount," "Signature of Injured Person." Receipts for payments for week ending 24th July, 1943, and four days ending 29th July, 1943, purport to be signed by the applicant by his mark. Receipts for weekly payments at the rate of £1 17s. 6d. per week up to and including the week ending 4th November, 1943, purport to be signed by Mary Kavanagh "for T. Kavanagh...