Butt v John W Eaton Ltd

[1920] HCA 72

29 CLR 126

JOHN W. EATON LIMITED

RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Workmen's Compensation-Proceeding - to recover-Failure to make claim within

specified time- Reasonable cause- Evidence-Workmen's Compensation Act 1916 (N.S.W.) (No. 71 of 1916), sec. 6. Nov. 12, 15.

Sec. 6 of the Workmen's Compensation Act 1916 (N.S.W.) provides that Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable

unless the claim for compensation has been made within six months from the occurrence of the accident causing the injury

Provided always that to make a claim within the period above specified shall not be a bar to the maintenance of such proceedings if it is found that the failure was occasioned by mistake, absence from the State, or other reasonable cause."

On the hearing of an application for compensation in respect of which the applicant had not made a claim within the time limited by sec. 6, the arbi- trator found that the applicant's failure to make a claim within that time was due to a certain cause which was different from that which the applicant in his evidence expressly stated.

Held, that there was evidence to support the arbitrator's finding. Decision of the Supreme Court of New South Wales: Butt v. John W. Eaton Ltd., 20 S.R. (N.S.W.), 559, reversed.

29 CLR 127

APPEAL from the Supreme Court of New South Wales,

An application was made under the provisions of the Workmen's Compensation Act 1916 (N.S.W.) by Frederiek Butt to a District Court Judge to determine the amount of compensation payable to the applicant by John W. Eaton Ltd., in whose employment the applicant was, he alleging that he had sustained personal injury by accident arising out of and in the course of his employment on 20th March 1920. No notice of the alleged accident was given to the respondent, nor was any claim for compensation made, until 23rd October 1919, and at the hearing of the application the respondent denied liability on the ground (inter alia) that the claim for com- pensation was not made within the time limited by the Act.

At the hearing the applicant in his evidence stated that the reason why he did not make a claim for compensation within six months from the accident was that he had given notice to a certain sick and accident fund established by the employees and had been paid a weekly allowance out of the fund for six months, and that he believed that that was sufficient notice of claim. He also in his evidence stated that he could not claim compensation until he was entitled to it; that he was not entitled to it until he was told that he was totally incapacitated that he had always been a strong man and thought that he would soon be able to go to work again; and that although the doctors had told him it was going to be a long job he did not understand that that meant that it was going to be a per- manent incapacity.

The District Court Judge found that the applicant was of opinion that he would get better and would not require to give any notice of claim for compensation and he held that that was reasonable cause for not making the claim. He then awarded compensation at the rate of £1 10s. 3d. a week.

From that determination the respondent appealed to the Supreme Court, and the Full Court by a majority (Pring and Wade JJ., Ferguson J. dissenting) held that as the applicant had explicitly given a reason for not making a claim which was not the reason found by the District Court Judge, his finding was contrary to evidence and there was no evidence to support it. The Court

29 CLR 128

therefore allowed the appeal and set aside the award Butt v. John

W. Eaton Ltd. 1.

From that decision the applicant now appealed to the High Court, Bavin (with him Mason), for the appellant. Shand K.C. (with him Edwards), for the respondent.

THE COURT was unanimously of opinion that there was evidence to support the finding of the District Court Judge.

Appeal allowed. Judgment appealed from re-

versed and award of the District Court Judge reinstated Respondent to pay costs of this appeal and of proceedings in the Supreme Court. Solicitors for the appellant, Sullivan Brothers. Solicitors for the respondent, Norton Smith &Co.

120 S.R. (N.S.W.), 559