Norris v Harrington

CourtSupreme Court
Judgment Date12 October 1944
Date12 October 1944
Norris v. Harrington

Supreme Court.

Workmen's Compensation - Register of agreements - Rectification of register - Application to rectify by striking out entire entry - Whether entry improperly made - Applicant injured in the course of his employment - Voluntary weekly payments made by employer - No admission of liability - No agreement registered as to amount of weekly payments - Applicant agreeing to release respondent from liability on payment of lump sum - Weekly payments terminated by written agreement on payment of such sum - Written agreement registered by County Registrar in register of agreements - Applicant applying subsequently to rectify register by striking out note as to agreement - Agreement improperly registered - Meaning of"rectification" - Workmen's Compensation Act, 1934, ss. 47, 48, 49, 50, 51 and 59.

The applicant was injured in 1938 while in the employment of the respondent. For a period of forty weeks from the date of the accident, weekly payments were made to him by the respondent at the full rate to which he would have been entitled under the Workman's Compensation Act. No agreement was ever registered as to such weekly payments nor was any payment fixed by the Court. At the end of forty weeks the applicant and the respondent entered into a written agreement whereby the applicant agreed to accept the sum of £150 in full settlement of all his claims against the respondent under the Workmen's Compensation Act. This agreement, which contained no admission of liability by the respondent, was registered by the County Registrar in the register of agreements.

In 1944 an application was made by the applicant to the Circuit Court Judge to rectify the register of agreements by the deletion of the entire entry relating to this agreement on the ground that it was not an agreement which could properly be registered under the Workmen's Compensation Act, 1934. This application was refused.

On appeal, the Supreme Court (Sullivan C.J., Murnaghan, Geoghegan, O'Byrne and Black JJ.) held that the agreement was not one which could be registered under the Workmen's Compensation Act, 1934, and accordingly it should not have been registered.

Held further by the Supreme Court (Murnaghan, Geoghegan and Black JJ., Sullivan C.J. and O'Byrne J. dissenting) that the provisions of the Workmen's Compensation Act, 1934, as regards rectification of the register, were wide enough to include the deletion of any entry which had been made without jurisdiction and that this entry should be deleted.

Accordingly the decision of the Circuit Court Judge was reversed.

Appeal by John Norris, a workman employed by the respondent, William Harrington, from an order made by the Circuit Court Judge of Cork (Judge O'Connor), dated the 4th day of February, 1944, dismissing his application to rectify the register of agreements established pursuant to s. 45 of the Workmen's Compensation Act, 1934, by deleting therefrom an entry of an agreement made between the

appellant and the respondent for the payment of a lump sum of £150 by the respondent to the appellant.

On the 10th May, 1938, the appellant, while in the employment of the respondent, received an injury to his left eye, as a result of which his eyesight was greatly impaired. For a period of about forty weeks following the date of his injury the appellant was paid £1 10s. a week, which amount was tendered to him as compensation under the Act. The amount was not fixed by an order of the Court nor by registered agreement. At the end of that period, viz., on the 14th day of February, 1939, the appellant and the respondent entered into an agreement whereby the appellant was to receive a lump sum of £150 in full settlement of all his claims, however arising, in respect of his injury.

This agreement for the payment of a lump sum was reduced into writing and was registered by the County Registrar in the register of agreements under the Act. Upon registration of the agreement the appellant was paid the £150 and he thereupon returned to work with the respondent.

About four years later, in May 1943, the appellant's right eye began to trouble him, and it was found that the trouble was due to the injured eye, and this eye had to be removed altogether. Almost immediately afterwards the remaining eye caused trouble, and an eye specialist, who was consulted, said that this trouble was an unusual and unexpected sequel to the original injury to the eye which had been removed.

On the 4th February, 1944, an application was made on behalf of the appellant to the Circuit Court Judge at Cork to delete from the register of agreements the entry recorded thereon relating to the agreement for the payment of the lump sum of £150 to the appellant. This application was made pursuant to s. 59 of the Act. The Circuit Court Judge dismissed the application and from his order the present appeal to the Supreme Court was brought.

On the 12th October the case was again listed before the Supreme Court for the purpose of settling the form of order.

Cur. adv. vult.

Sullivan C.J.:—

I have read the judgment which has been prepared by Mr. Justice O'Byrne. I agree with it and have nothing further to add.

Murnaghan J.:—

The agreement, the subject-matter of this appeal, was entered into on 16th February, 1939. It recites inter alia that an accident entitling the workman to compensation under the Workmen's Compensation Act, 1934, occurred on 10th May, 1938, that the workman had received from his employer the sum of 30s. per week, and that it had been agreed between the employer and the workman that the latter should receive £150 in full settlement of all claims.

Section 17, sub-s. 1 of the Act makes void all contracts whereby other provisions are substituted for the provisions of the Act, and accordingly, in accordance with the principle of the decision in Russell v. Rudd(3), this agreement can only be valid if it complies with some of the provisions of the Act contained in sects 49, 50, 51.

The agreement was presented for registration and was registered under the prescribed procedure, but an objection is now made that there was no jurisdiction to register this particular agreement.

Two questions accordingly arise:—1, whether there was jurisdiction to register the agreement, and 2, whether the procedure by way of motion to rectify the register is applicable in the circumstances.

Under s. 49 of the Act the employer and workman can enter into a redemption agreement, which, upon being registered, has the effect of releasing the employer from the liability to continue to make weekly payments, but such redemption agreement can be made, according to the opening words of the section:—"Where the amount of a weekly payment to be made under this Act by an employer to a workman has been fixed by the Court or by agreement between the parties." What is the meaning of "fixed by agreement between the parties"? Sect. 47 seems to make this point clear. This section (s. 47) enacts:—"Where an employer and a workman enter into an agreement (in this Act referred to as a weekly payment agreement) fixing the amount of the weekly payment to be made to such workman under this Act, such agreement shall not, nor shall the payment of the sum payable thereunder operate to fix the amount of such weekly payment unless and until it is duly registered under this Part of this Act." Bearing in mind this express provision, it seems to me clear that a redemption agreement under s. 49 cannot be validly entered into unless the weekly payment agreement has been previously registered.

It was also suggested that the facts of the case might come within the provisions of s. 50, which allows a commutation agreement "where an employer admits his liability to make a weekly payment under this Act to a workman, but the amount of such weekly payment has not been fixed by the Court, or by agreement between the parties." It is true to say that the amount of the weekly payment has not been fixed by the Court or by agreement between the parties within the statutory meaning of these words. I do not think this case is one contemplated by the section as a commutation of a liability which has been admitted.

I am therefore of opinion that there was no jurisdiction to place upon the register the agreement entered into between the parties.

Sect. 59 of the Act is as follows:—"The Court may at any time cause the register to be rectified (whether by variation, addition or omission) in such manner as justice may require." If this section is applicable, the application before the Court was properly made by motion, but it is objected that the application is not really and truly an application for rectification of the register and that no recourse can be had to s. 59.

When an agreement has been registered it operates as a release of the employer's liability, and would, I think, operate as an estoppel by record in case the workman subsequently brought an application for compensation. Where, as in the present case, the registration was made without jurisdiction, it would probably be possible to quash the entry in the register on an application for certiorari, but, having regard to the parties affected by the Act, it is, I think, prima facieunlikely that this remedy should be the only one.

In Schofield v. W. C. Clough & Co.(1) the Court of Appeal in England held that an agreement which had been registered could not be removed from the register on the ground of mistake by a summary application to the County Court. The application was made under the provisions contained in Sch. II, par. 9, of the Act of 1906. Proviso (e) enabled the County Court to order that the record be removed from the register on proof that the agreement had been obtained by fraud or undue influence or other improper means. Proviso (c)enacted:—"The Judge of the County...

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