United Kingdom House of Lords Decisions

It is plain to me that in this case there was evidence upon which the Sheriff-Substitute could find as he did on the point that the appellants were not prejudiced by absence of notice, and under these circumstances I move your Lordships that the appeal be dismissed with costs.

Lord Kinnear—I entirely agree with my noble and learned friend. As I understand, there is no question now in controversy except whether the appellants have or have not been prejudiced by the failure of the respondent to give notice of the accident.

Now that is a pure question of fact which has been decided by the learned Sheriff-Substitute as arbitrator. The form in which it arose was that it was maintained, on the one hand, that the death was due to cerebral hæmorrhage, and on the other hand that it was due to heart failure caused by excessive strain in the course of the man's work in the mine. The Sheriff-Substitute had evidence before him on which he came to the conclusion that it was due to heart failure, and I suppose that if that were the only question nobody would dispute that that was really a question of fact for him, and that he had come to a conclusion which, whether right or wrong, was at all events maintainable on the evidence.

But then it is said that, such as it was, the evidence was not absolutely conclusive, and that it might have been made so were it not for the failure of the applicant to give due notice, in consequence of which the appellants were unable to prove what they claim they might have proved as to the cause of death had they known of the accident in time; but that again is a question of fact for the Sheriff-Substitute. The learned Sheriff-Substitute has considered that, and he has come to the conclusion that the appellants have not suffered prejudice from the cause alleged, because all the advantages which would in their view have been open to them if they had obtained due notice in time were still obtainable if they had chosen to use the ordinary means of ascertaining the facts. His view therefore is that no prejudice has been proved. Now he may be right or wrong in that; I do not know. I think there is a great deal of force in some of the observations which were made by Mr Horne, but it was a question for the learned arbitrator and for nobody else, and I think it is quite impossible to say that no reasonable man with the facts before him which were before the mind of the learned Sheriff-Substitute could have reached the conclusion at which he has arrived, and if we cannot say so, then we cannot disturb his judgment.

Lord Shaw—In many such cases the fact of the accident having taken place being plain, the causal connection between the accident and the death may of course require to be cleared up, and it is easily conceivable that the obscurity may be removed by a post-mortem examination. These cases are conceivable, and in each of them the statute lays upon the judge the duty of determining as a matter of fact whether the delay in giving notice has been to the prejudice of the employer. The learned Sheriff-Substitute in the present case has most properly addressed himself to that issue of fact, and he has found substantively in the language of the statute that no such prejudice has occurred. I see nothing whatsoever in the case to induce me to infer that that judgment was arrived at without sufficient cause, and a fortiori I see nothing which should induce me to state affirmatively that there was no reasonable ground for his coming to that conclusion. Upon evidence perfectly reasonably given upon both sides he has made the negative conclusion required by the statute, and I do not think it is for this House to interfere with that. Upon the facts I would only further observe that no attempt was made by the appellants to assist in clearing up the facts by making any application either with or without the consent of the relatives for the exhumation of the body of the interred workman. The appellants chose rather to allow the obscurity to remain, and to found upon a prejudice which they left the Court to infer that they had suffered. In those circumstances the arbitrator is not to be blamed for making his adjudication to the best of his power upon all the materials before him. In that I think he was right, and his judgment does not seem to be impaired by any error in law.

Lord Parmoor—The question whether an employer is not prejudiced in his defence by delay in the giving of notice is simply a question of fact. The finding of the arbitrator cannot be set aside unless there is no evidence, or the circumstances are such that no reasonable man could come to the conclusion to which he has come. Lord Loreburn points out in the case of Hayward that the arbitrator in coming to a decision should look at all the matters before him without a presumption one way or the other. I think this House could not under the conditions in this case interfere with the finding of the learned arbitrator, which was confirmed by the Court of Session.