Young v Roche and McConnell, Ltd

JurisdictionIreland
CourtSupreme Court
Date01 January 1942
Young v. Roche & McConnell
In the Matter of the Workmen's Compensation Act,1934, and in the Matter of an Arbitration between CORMAC YOUNG, applicant, and ROCHE & McCONNELL, LTD., Respondents (1)

Supreme Court

Workmen's Compensation - Award - Partial incapacity of workman - Treatment of partial incapacity as total incapacity - Workman "so far recovered from his injury as to be fit for employment of a certain kind" - Workman's failure to obtain employment - Whether a consequence of his injury - Trade Union regulations preventing workman obtaining employment - Workmen's Compensation Act, 1934 (No. 9 of 1934), s. 24.

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 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."

The object of clause (a) of the above section is to secure to a workman, who has partially recovered, compensation on the footing of total incapacity, if it can be shown that, had he completely recovered, he would probably have obtained work in the same grade in the same class of employment as before the accident.

So held by the Supreme Court, following Barstow v. Ingham's Thornhill Collieries, Ltd., [1934] A. C. 304, and Robert Addie & Sons, Ltd. v. McCracken,[1937] S. C. (H. L.) 1.

A workman sustained injury by accident arising out and in the course of his employment. He brought proceedings for compensation under the Workmen's Compensation Act, 1934. Evidence was given that he had"so far recovered from his injury as to be fit for employment of a certain kind," but that the Trade Union to which he belonged would not allow him to work except at the full rate of pay, and that he was unable to obtain employment although he had made application to several firms. The Circuit Court Judge held that it was not the continuing effect of the workman's injury that prevented him from obtaining work in the same grade in the same class of employment as before the accident and, further, that his"failure to obtain employment" was not "a consequence, whether wholly or mainly, of his injury" but was mainly due to the attitude of his Trade Union, and, accordingly, he refused to make an order under s. 24 of the Act that the incapacity be treated as total incapacity. On the basis of partial incapacity he was of opinion that there was not sufficient material on which to assess the amount of compensation, and, in the circumstances he made no award but adjourned the application generally. The workman appealed to the Supreme Court.

The Supreme Court was of opinion that had the Circuit Court Judge been referred to the decision in Barstow v. Ingham's Thornhill Collieries Ltd., [1934] A. C. 304, and in Robert Addie & Sons, Ltd. v. McCracken [1937] S. C. (H. L.) 1, he would have approached the consideration of s. 24 of the Act in its application to the facts of the case in a different way, and held, accordingly, that the proceedings must be remitted to the Circuit Court Judge to consider the evidence in the light of these two cases and decide accordingly.

Appeal on behalf of Cormac Young, the applicant in proceedings under the Workmen's Compensation Act, 1934, from an order of the Circuit Court Judge of the Dublin Circuit (Judge Davitt), dated the 9th May, 1940, in so far as the said order directed the applicant's application for compensation to be adjourned generally, and that in lieu thereof an order might be made declaring that the applicant's incapacity be treated as total incapacity under s. 24 of the above-mentioned Act, and that the applicant was accordingly entitled to compensation calculated 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 applicant was an electrician employed by the respondents, a firm of electrical contractors, and while repairing an electric lift met with an accident arising out of and in the course of his employment, resulting in the restrictive movement of his left knee. He brought proceedings for compensation under the Workmen's Compensation Act, 1934. Evidence was given at the hearing of his application on the 9th October, 1939, that the Trade Union to which he belonged would not allow him to work at any job except at the full rate of pay, and that he was unable to obtain work though he applied to several firms of electrical contractors for employment. The Circuit Court Judge found that the applicant was partially incapacitated but held that he had not sufficient evidence before him to enable him to assess the compensation to which the applicant was entitled, and he adjourned the case generally with liberty to apply.

A second application was made to the Circuit Court Judge on the 9th May, 1940, and the material portion of the judgment of the Circuit Court Judge, in which the facts are fully stated, was as follows:—

"I have already found that the applicant in this case is partially incapacitated as a result of an accident arising out of and in the course of his employment as an electrician with the respondents. The nature of his physical disability is that he has a knee which he cannot bend to a greater degree than a right angle. The effect of this is that he finds it awkward to work in a confined space. In a very confined space he would find it impossible, as he is incapable of bending both knees at the same time. He can use a ladder but he has to do so slowly, bringing both feet together on each rung as he ascends or descends. It would be very inadvisable, perhaps beyond his capacity, to attempt to ascend a wooden standard by means of spikes.

The effect of his physical disability upon his capacity for work as an electrician is definite, but limited. He is a good workman, and within his physical limitations already referred to can do all that is required of him. He is not confined to work...

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1 cases
  • Hogan v Davis Estates Ltd
    • Ireland
    • Supreme Court
    • 1 January 1942
    ...case should be sent back to him to assess compensation. (1) Before Sullivan C.J. , Murnaghan , Meredith , Geoghegan and O'Byrne JJ. (1) 74 I. L. T. R. 254. Now reported, ante p. (1) 74 I. L. T. R. 254. Now reported, ante p. 353. (1) 74 I. L. T. R. 254. Now reported, ante p. 353. (2) [1934] ......

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